Judicial pro-activism and collaborative constitutionalism: Ensuring environmental justice in India, Ireland, and Bangladesh
Salekin, Masrur
Salekin, Masrur
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Publication Date
2022-09-29
Type
Thesis
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Abstract
This is a doctrinal, comparative, and socio-legal analysis examining the role of the courts of India, Ireland, and Bangladesh in environmental matters. Considering the challenges they face, this thesis proposes and constructs ‘judicial pro-activism’ and ‘collaboration’ as methods to help judges in ensuring environmental justice while maintaining constitutional principles. The thesis discusses environmental justice discourse and examines the roles of the judiciaries of the selected jurisdictions in ensuring the elements of environmental justice. The examination shows that in an attempt to protect the environment, these judiciaries have encroached on the domain of other organs and have engaged in adventurism in exercising activism, or have shown judicial passivity causing injustice. A critical examination of the judicial decisions also demonstrates that the judiciary alone cannot resolve multi-faceted environmental problems by pronouncing judgments. It includes qualitative data gathered through semi-structured interviews with judges, lawyers, academics, and environmental activists. Data analyzed through a constant comparative method shows gaps between academics and practitioners impacting the development of environmental jurisprudence in the selected jurisdictions. To better protect environmental rights and the environment, and based on qualitative data, this thesis proposes that the courts should adopt a proactive role and a collaborative approach to reach a sustainable, effective, and robust decision. Case references from the selected jurisdictions are examined to develop a collaborative method. Finally, this thesis examines the functioning of the National Green Tribunal (NGT) of India to develop a stronger environmental institution to better protect and ensure environmental justice. The thesis demonstrates, through an examination of the salient features and innovative working procedures of the NGT (involving other organs and stakeholders by means of stakeholder consultation and monitoring mechanism), that the NGT has adopted a collaborative approach and can be used as a model for Bangladesh and Ireland.
Publisher
NUI Galway