Prof. Dr. D. Bhuvaneswari


Environmental sustainability Goals are emerging as a juscogens norm binding all the nations around the world. There exists robust relation between environmental sustainability and Economic growth of the Nation. The research paper discourses the cutting-edge developments of climate change litigation in India, bringing to prominence the flukes of the Indian legal system that gives it the legitimacy and authority to incorporate new ideas into the Nation’s legal framework as it is highly related to Nation’s economic development. The concept of Rule of Law in modern era includes Environmental Justice as well because it acts as a precondition to attain sustainable development. Especially the neoliberalism in contemporary era hinders the evolution of norms around environmental sustainability and there exists tensions in policy making by the state that requires judicial adjudication. Amidst these tensions how far the judiciary in India acts as a protector to balance Environmental protection, Climate change and sustainable developmental goals is the focus of this article. Moreover, the research paper examines, how far the climate change governance assumes both international as well as national concern for future and the conceptualistic approach that highlights recent advancements in the nation’s climate change Environmental jurisprudence. The main theme of the work concentrates on two different philosophical approach i.e, Legal formalism and Legal Realism and explores the phenomenal discourse between a dynamic legal system that applies international environmental principles domestically and the recent obstacles to Environmental sustainability especially the climate litigation by highlighting a growing and pervasive trend towards the incorporation of these principles of global international law into domestic law. To put it in modest, whether pragmatic agency decision making is more effective than judicial textualism? The research methodology adopted is Descriptive, analytical, philosophical and explorative as well.

Keyword : Formalism and Legal Realism – Environmental Sustainability - Climate Change – Economic Growth - Role of Indian Judiciary – Balancing approach.

Published in Issue
May 25, 2024
Abstract Views
PDF Downloads
Creative Commons License

This work is licensed under a Creative Commons Attribution 4.0 International License.


1 Ross Guest, ‘The Economics of Sustainability in the context of Climate Change: An Overview’ Journal of World Business, Volume 45, Issue 4, October 2010, p.326-335. 2 Peter Jackson, “Green Our World!”, June 2007, Vol. XLIV, No. 2, Cf, change#:~:text=In%201988%2C%20global%20warming%20and,public%20debate%20and%20political%20agenda, viewed on 12/02/2024. 3 Svante Arrhenius, Wikipedia,, viewed on 01/02/2024. 4 Climate Change, “The Calender Effect: Here is how the man is connected to human’s to global warming in 1938”, Viewed on 28/01/2024. 5 National Green Tribunal Act (2010), Section.14 – NGT has jurisdiction over all civil cases involving substantial question relating to environment (including enforcement of any legal right relating to environment) arising out of the implementation of the enactments specified in the schedule I of the 2010 Act. Dr. Naveen S. ‘Climate Change and Indian Courts: Are we on the right Track’, VBCL Law Review, December 2022, Issue VII, Vol. 1, pp. 81-102. 6 Article 51 of the Indian Constitution, ‘The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another’. 7 Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 1971 International Journal of Law Management & Humanities [Vol. 4 Iss 3; 1970], 2021. International Journal of Law Management & Humanities [ISSN 2581-5369]. 8 Brian Leiter, Legal Formalism and Legal Realism: What is the Issue? Legal Theory, 16(2), Cambridge University Press 111-133. DOI:10.1017/S1352325210000121. Cf, Kumari Sweta, A Jurisprudential Analysis of Legal Formalism and Legal Realism under Indian Legal System, 2021. International Journal of Law Management & Humanities [ISSN 2581-5369]. 9 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897), reprinted in 110 Harvard Law Review 991 (1997), at 460-461. 10 Hakim Yasir Abbas, India’s “Too Much Constructivism” Syndrome: A Critical Analysis of Indian Constitutional Regime in the Light of American Legal Realism, IJLPP (2014-15) Vol.1.1, p.5. 11 511 U.S. 328 (1994). 12 Eeshan Chaturvedi, Climate Change Litigation: Indian Perspective, German Law Journal (2021), 22, pp. 1459–1470, doi:10.1017/glj.2021.85, Cambridge University Press,p.1459. 13 Ronald Dworkin, Taking Rights Seriously, Cambridge: Harvard University Press, 1977, at p. 3. 14 Jon O. Newman, Between Legal Realism and Neutral Principles: The Legitimacy of Institutional Values, 72 Cal. L. Rev. 200, 203 (1984); See also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, 44 (1980). [Cited in Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, Texas Law Review, December 1997, at p. 267 ; Steven J. Burton, Judging in Good Faith, 43 (1992). [Cited in Leiter,1997, at 268]; Frederick Schauer, Playing by the Rules, 191 (1991). [Cited in Leiter, 1997, at 268]. 14 Robert Satter, Doing Justice: A Trial Judge at Work, 64 (1990). [Cited in Leiter, 1997 at 268]. 15 Kharak Singh v. State of Uttar Pradesh & Ors., AIR 1963 SC 129, Bennett Coleman v. Union of India, AIR 1973 SC 106, Maneka Gandhi v. Union of India, AIR 1978 SC 597, Vishaka v. State of Rajasthan, AIR 1997 SC 3011. 16 This zeal is well reflected in the way that the Indian constitutional courts have developed environmental jurisprudence. Due to the Supreme Court's interpretation of the Constitution, almost all of Indian legal jurisprudence regarding environmental law has been established. India's natural environment has been under the watchful eye of the Supreme Court, which gained notoriety as an activist court in the mid-1980s.; See, Upendra Baxi, The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]Justice, in Fifty Years of the Indian Supreme Court: Its Grasp and Reach, pp. 156-210 (S.K. Verma, et. al. eds., 2000); Saptarishi Bandopadhyay, ‘Because the Cart Situates the Horse: Unrecognised Movements Underlying the Indian Supreme Court’s Internationalization of International Environmental Law’, 50 Indian J. Int’l. L. 204 (2010). 17 It is conspicuous to note, Chief Justice Bhagwati stated in M.C. Mehta v. Union of India, (1987) 1 SCC 395 as follows: “We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for that matter in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.” [Id. at 421] ; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 [The Hon’ble Supreme Court denied to apply the concept of “affirmative action” as it exists in U.S.A. to Indian conditions and stated that: “under these circumstances [where the social context in which the law is made], judgments from the US, while entitled to respect, must be approached with great caution, for their adoption would lead to jettisoning of over half a century of our jurisprudence.” [Id. at 307]. Cf, Hakim Yasir Abbas, ‘Critical Analysis of the Role of Non-Indian Persuasive Authorities in Constitutional Interpretation’ CALQ (2013) Vol. 1.2. 18Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104. 1920 December,2019, available at the-netherlands/, viewed on 01/02/2024. 20 AIR 1997 SC 3011. 21 AIR 1988 SC 1531. 22 AIR 1987 SCR (1) 819. 23 1996 AIR 1446. 24 1996 5 SCR 241 25 Sunil Batra v. Delhi Administration, AIR 1978 SC 1548 (India) at Page 23. 26 (2006) 3 SCC 549, 27 O.A. No. 24 of 2011, Decided On: Aug. 23, 2016. 28 M.A. No. 965 of 2019. 29 Special Leave to Appeal (C) No (s). 12591/2022.