01, 02 & 03

25
An introduction to Environmental law Environment: Definition ‘Environment’ includes water, air and land and the inter-relationship which exists among and between water, air, land and human beings, other living creatures, plants, micro- organisms and property S.2(a) EPA Anthropogenic approach Public trust doctrine precautionary principles sustainable development polluter-pays principle Inter-generational equity HR approach to environment protection in human- wildlife conflict Doctrines evolved: no role protecting an endangered species Eco-centrism

Upload: manu-j-plamootil

Post on 15-Apr-2016

220 views

Category:

Documents


2 download

DESCRIPTION

Environmental Law

TRANSCRIPT

Page 1: 01, 02 & 03

An introduction to Environmental law

• Environment: Definition

‘Environment’ includes water, air and land

and the inter-relationship which exists among and between water, air, land and human beings, other living creatures, plants, micro-

organisms and propertyS.2(a) EPA

Anthropogenic approach • Public trust doctrine • precautionary principles • sustainable development• polluter-pays principle• Inter-generational equity • HR approach to environment protection in human-wildlife

conflict • Doctrines evolved: no role protecting an endangered species

Eco-centrismCustoms and law in India

• Dharma to worship nature – river, tree, sacred groves• Sun, air, fire, water and earth - yagnas• “The universe along with its creatures belongs to the Lord. No

creature is superior to any other. Human beings should not

Page 2: 01, 02 & 03

be above nature. Let no species encroach over the rights and privileges of other species”- Isha Upanishad

• Mauryas and Mughals: Advent of the British and the forest laws• Article 51-A (g) of the Constitution

Conventions• EPA and BDA, CITES and CBD : shift from environmental rights

to ecological rights . • Convention for Conservation of Antarctic Marine Living

Resources, 1980; the Protocol on Environmental Protection to the Antarctic Treaty, 1998; the Bern Convention on the Conservation of European Wildlife and Natural Habitat, 1982; CITES and CBD

Man-animal conflict: when? • Not only natural causes but human failures• Human population growth• Land use transformation• Too much access to reserves• Species loss of habitat• Eco-tourism• Increase in livestock population bordering the forest • Wild animals a) damaging crops and propertyb) Killing livestock and human beings • Depletion of natural prey base • Can environmental justice be achieved if we drift away from eco-

centric to the anthropocentric approach? Relation with other disciplines

a) Anthropology b) Political sciencec) Economicsd) Biology

Page 3: 01, 02 & 03

e) Ecologyf) Forestry,

Relation with other laws

a) Constitutional law, b) administrative law, c) social welfare law, d) law of torts, e) International law, f) criminal law, g) tax law

Sources

(i) common law(ii) statute law

(iii)customs and practices(iv) international Conventions

DECISIONS OF COURTS• Nuisance action• Judicial Review

Judicial Review: Locus standi• Juristic personality

“Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes … so it should as respects valleys, alpine meadows,

Page 4: 01, 02 & 03

rivers, lakes, estuaries, ridges, grooves of trees, swamp land or even air …”

- Douglas in Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636• If a “person” can be an idol, a corporation or a ship or an

institution, the expression can include living creatures other than human beings as well as inanimate things - Christopher Stone

• plants do have a soul – JC. Bose - Why can’t lion tailed monkey, a tiger an elephant , a fish, or a tree, a mountain or a steam has the right?

• Lawyers representing others and Amicus curie.• PIL breaks traditional barriers.

Statutes Wild Life (Protection) Act 1972- WLPA• Water(Prevention and Control of Pollution) Act 1974• Forest (Conservation) Act 1980 – FCA• Air (Prevention and Control of Pollution) Act 1981• Environment (Protection) Act 1986 - EPA• Public Liabilities Insurance Act 1991 - PLIA• Bio-diversity Act 2002 - BDA• Scheduled Tribes And Other Forest Dwellers Act 2006• Green Tribunal Act 2011 - GTA

Benefits of Statutes• Deterrent sanctions and effective remedies• An administrative agency• Better public participation• Avoiding costly and retracted litigation• Class action and citizen suits• EPA - air and water laws

Page 5: 01, 02 & 03

• No specific statutes for civil action

International Conventions• Stockholm 1972 • Rio 1992• Johannesburg 2002• Convention on International Trade in Endangered Species of Wild

Fauna and Flora 1973 (CITES) • Convention on Bio-Diversity 1992(CBD)

Law of Public Nuisance

Public and private nuisance• contamination of water treated as a nuisance – the Water

Act: • Private nuisance: interference with the use of one’s land • Public nuisancea) an interference with a right common to the general

public b) the extent of harm affecting a lot of peoplec) not to be ascertained, quantification of damages difficult• Public nuisance - close connection with environment law

Suits under CPC• Easement: beneficial enjoyment of one’s land free from

air, water or noise pollution

Page 6: 01, 02 & 03

• Civil remedies• Damages• Injunction• interim orders• declaration or decree • Standing a hurdle • s 91,CPC - technique to overcome the hurdles

Class action• Against environmental violations s.91• Order 1 Rule 8, CPC - amplification of class action with

the permission of the court • notice by personal service or by advertisement • The decree binding on all parties on whose behalf or for

whose benefit the suit is instituted • enough that the persons who sue, have the same interest

in the suit.

Perumal Naicker v Rathina Naicker, AIR 2004 Mad 492 (constructing a building, defendant encroaching on the common pathway) • the nuisance also affects the public from freely making

use of the path for reaching important places such as school, river and graveyard

• s 91, CPC not preventing an individual, personally affected, to file suit

• mandatory injunction to the defendant to remove obstruction of pathway

Charan Lal Sahu v Union of India, AIR 1990 SC 1480

Page 7: 01, 02 & 03

 The Bhopal Gas Leak Disaster (Processing of Claims) Act 1985 • Central Govt having the exclusive right to represent the

claims of the victims in parens patriae suits • to deal with ‘speedily, effectively, equitably and to the

best advantage of the claimants’  

As a criminal offenseThe Indian Penal Code s 268.

• “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

Nuisance in Cr P.C• Under s 133 of the Cr PC • an executive magistrate removing public nuisance • first with a conditional order, and then with a permanent

one - can be utilized in the case of nuisance of an environmental nature

• s 142: immediate measures to prevent danger or injury of a serious kind to the public

• s 144: for prevention of danger to human life, health or safety, the magistrate can direct a person to abstain from certain acts

Page 8: 01, 02 & 03

Courts and public nuisanceDeshi Sugar Mill v Tupsi Kahar. AIR 1926 Pat 506

About a hundred people approaching, magistrate ordered to discontinue two sugar mills draining dirty, toxic water into the river) • Court recognized the magistrate’s power to apply law of

nuisance in s 133 to pollution • did not interfere - no sufficient evidence to pinpoint which of the

two contaminated the river. • no complaint against the one on the upstream till the one in the

downstream came into being. • A civil surgeon and a chemist saying pollution of the river due to

vegetable growth.Ram Baj Singh (Dr) v Babulal, AIR 1982 All 285

  brick-powdering mill generating dust entering doctor’s chamber, causing physical inconvenience to him and his patients the machine installed without valid permission after the doctor had started his consulting chamber

Philosophy of ‘Nuisance’ • public nuisance - consequence of one’s acts no longer

remains confined to his own property, but spills over in a substantial manner to the property belonging to another

• reasonable persons do not consider trivial consequences as nuisance

• something done by the owner of a neighboring land upon his own land which is not comfortable or is wholly uncomfortable with physical comfort and human existence

Page 9: 01, 02 & 03

• person aggrieved gets a right to sue - act of the neighbor an actionable nuisance.

A note of cautiona) to judge whether the air has been polluted to an extent

that it has ceased to be comfortable with human comfort and existence

b) standard to be employed again is that of a sober and reasonable mind

c) Concepts of elegant and dainty living wholly out of place - the location of a property a relevant circumstance

d) person living in an industrial locality cannot claim to have as much fresh air as a person living in a non-industrial area

Special damage• ‘special damage’ indicates damage caused to a party contrary to

damage caused to the public at large• When an act amounts to public nuisance, an individual can sue in

his own right. • This can be done if he is able to prove special damage to himself,

i.e, damage personal to him as opposed to damage or inconvenience caused to the public at large or to a section of the public.

Single act amounting to pub.nuice

Page 10: 01, 02 & 03

• damage caused to public at large, on account of a nuisance, is referred in law as public nuisance.

• a single act may amount to a public nuisance providing cause of action to an individual to sue - Example

a) heaps of night soil on the side of a public highway b) nuisance to the general public as well as a private nuisance to a

person who lives in a adjoining house.

Test of the reasonable man Dust emanated from the crushing of bricks - assessment of

substantial injury is to be made by the test of reasonable man and not by the susceptibilities of hypersensitive persons. The court said, “Causing of actual damage by the act complained of as a nuisance is beside the point. If actual damage or actual injury were to be the criterion a person will have to wait before the injury becomes palpable or demonstrable before instituting a suit or its abatement.”

the high court issuing a permanent injunction against using the offending brick grinding machine - nuisance created by the defendant’s brick powdering machine caused common injury, danger or annoyance to the patients visiting the consulting chamber

people were using road dividing the defendant’s place of business and the plaintiff’s chamber – no debate whether such nuisance would come within the ambit of public nuisance under s. 133 of Cr PC, although the case was filed as a suit.

PATH OF ACTIVISM

Govid Singh v Shanti SwaroopAIR 1979 SC 143

Page 11: 01, 02 & 03

nuisance of smoke from a bakery - magistrate ordering demolition of the oven and the chimney and winding up e business• approving magistrate ‘use of the oven and chimney was

virtually playing with the health of the people’ • emission of smoke injurious to the health and physical

comfort of people in the proximity• Held, not merely the right of a private individual but the

health, safety and convenience of the public at large is involved

Govind Singh continues• the safer course to accept the view of the Magistrate, who saw

for himself in a local inspection the hazard• carry on the trade of a baker but should not use the oven and

the chimney. • How can a baker carry on his trade if the oven and the chimney

for his bakery were demolished ? Not examined in the case. • Supreme Court of India has captured the potentiality of the law

of nuisance in Cr PC as a remedy for environmental assaults - went into wider parameters of public nuisance

Municipal Council, Ratlam v Vardhichand , AIR1987 SC 2734

Residents within Ratlam, suffering from pungent smell from open drains and slums and the malodorous liquids flowing on to the street from the distilleries

Page 12: 01, 02 & 03

magistrate ordered time bound six-month program for constructing drainage and public latrines

municipality opted to challenge this pleading financial constraints and inability to carry out the scheme

Ratlam continues• municipal legislation casting a duty on the municipality to

maintain clean roads and clean drains and IPC punishment for contravening magistrate’ s direction are imperative tones demanding a mandatory duty under s 133 Cr PC

• municipality cannot plead that notwithstanding the public nuisance, its financial inability validly exonerated it from statutory liability

• Cr PC operates against statutory bodies regardless of the cash in their coffers because human rights have to be respected by the state irrespective of budgetary provisions

• statutory agencies should not defy their duties by urging in self-defense, a self-created bankruptcy of perverted expenditure budget.

Ratlam generated innovative ideas • “Decency and dignity are non-negotiable facets of human

rights and are a first charge on the local self-governing bodies. Similarly, providing drainage systems — not pompous and attractive, but in working condition and sufficient to meet the needs of the people — cannot be evaded if the municipality is to justify its existence”

• The processes having a social justice component • The remedies and the powers under the are conducive to the

demands of the rule of law necessitated by the conditions of developing countries

Page 13: 01, 02 & 03

• municipality should prepare a scheme and abate the nuisance.

Ratlam : a landmark in path of environmental jurisprudence• The judicial activism of the eighties - an important role in

reaching new horizons of environmental jurisprudence in India - Ratlam a significant milestone in the path - identified responsibilities of local bodies towards the protection of environment - developed law of public nuisance as a potent instrument for enforcement.  

• served to offset the insufficiency of the legal mechanism and enforcement not only in the laws governing local bodies but also in other environmental legislations such as Water Act, Air and EPA

• Local self-governing institutions can hardly take up welfare and development plans, unless they have sufficient funds - In certain instances, directions of the court may prove to be unenforceable. Was plea of financial inability rejected in a realistic manner?

• 73rd and 74th amendments to the Constitution - more powers, responsibilities and financial strength - Ratlam period might have been different with perpetual negligence in providing basic amenities and performing clean-up duties - their zeal in spending money for litigation instead of providing civic amenities - obvious factors that weighed with the court in brushing aside the plea of financial inability

• a trendsetter - widened the scope and amplitude of the jurisdiction of e magistrate under s 133 of Cr PC - a useful antidote to the crisis of sanitary environment management in the Indian scenario – the case lays down basic guidelines in determining the primary responsibilities of local bodies and industries

Page 14: 01, 02 & 03

• Emphasis on accountability of both public and private agencies in a welfare state - public bodies are accountable for callous negligence of corporate bodies for their persistent violation of emission standards.

Krishna Gopal v State of (1986) Cr LJ 396•  manufacturing of medicine in a residential locality with

the aid of a booming boiler resulting in emission of smoke noise

• MP High Court held the community or large number of complainants need not complain

• s 133(1): jurisdiction of magistrate can be invoked on receiving a report of a police officer or other information, and on taking such evidence if any, as he thinks fit

• rejected contention that the inconvenience to the inmates of the house is not public nuisance, but only private nuisance - undoubtedly injurious to health as well as the physical comfort of the community - dismissed revision petition with costs.

• Krishna Gopal applied both to air and noise pollution - found a wider scope for the law of public nuisance for protecting the environment - facts showing several public authorities colluding to grant license to the company - a parallel civil suit decreed ex parte against one of the authorizes

• Ratlam gave substance to the provision in s 133, Krishna Gopal renders it a new vigour.

Noise as public nuisanceRaghunandan v Emperor AIR 1931 All 433

magistrate forbidding operation of factory engines from 9 pm to 5 am as it was ‘injurious to the physical comfort of the community’

Page 15: 01, 02 & 03

Himmath Singh v Bhagwana 1988 CrLJ 614 (working of the fodder cutting machines caused noise and offensive smell - sand-laden winds carrying particles of fodder to the residential colony close by – People could not sleep, nor could wet clothes be sun dried)

Rajasthan High Court held that all these constituted public nuisance justifying interference of the magistrate.Madhavi v Thilakan (1989) Cr LJ 499 (nuisance by automobile workshop in residential area)

“We recognise every man’s home to be his castle which cannot be invaded by toxic fumes, or tormenting sounds. This principle expressed through law and culture, consistent with nature’s ground rules for existence, has been recognised in s 133(1)(b). The conduct of any trade or occupation, or keeping of any goods or merchandise injurious to health or physical comfort of community could be regulated or prohibited under the section.”• Not only criminal jurisdiction but also preventive and remedial

jurisdiction –a repository of regulatory powers of the state in the interest of ‘health and physical comfort of the community’

Contours of public nuisanceJayakrishna Panigrahi v Hrisikesh Panda (1992) Cr LJ 1054. • The chapter containing s. 133 is titled ‘public nuisance’

while the section only ‘nuisance’ arguable that expression ‘nuisance’ cannot but be interpreted as public nuisance.

• Rajasthan High Court held, despite heading ‘public nuisance’, literal and unambiguous meaning given to ‘nuisance’ applying to a case where the interest of a single individual or of a few individuals are affected.

Pranab Kumar Chakraborty v Mhd Akram Hussain 1991 Cr LJ 3156

Page 16: 01, 02 & 03

• With the help of s 133 a landlord could not evict a tenant in an unreasonable manner - owner complaining that the tenant had in a room kept under lock and key some unhygienic articles producing bad smell - orders from magistrate, the police broke the door open without the knowledge of the tenant only to find no article causing odour.

• The Gauhati High Court interfered and quashed the orders of the magistrate and restored the room to the tenant. discretion of the magistrate under s 133 is not unbridled – he has to apply his mind whenever a complaint is brought before him.

Air pollution as public nuisance Shoukat Hussain v Sheodayal, AIR 1958 MP 350

(particles of cotton blown from a cotton-carding machine causing breathing difficulties to the non-applicant and his neighbors - residents not complained •  Magistrate on a report: harm might affect more people and

amount to public nuisance-court: nuisance of one person and his neighbors cannot be public nuisance - facts show that the nuisance would have affected a large number of people - S. 133, Cr PC not showing it apply only to actual nuisance - when the construction of a building or the condition of a tree is likely to be dangerous to the public, preventive action can be taken - no reason why such preventive action is not allowed in all types of public nuisance. In recent times, unpredictable and rapid environmental catastrophe prevention is better than cure

Ajeet Mehta v State of Rajasthan, 1990 Cr LJ 1596 • business of loading, unloading and stocking of fodder

near a residential locality being a serious health hazard

Page 17: 01, 02 & 03

polluting atmosphere with dust particles of fodder - order of the magistrate for removal of the business was endorsed

Kachrulal Bhagirat Agrawal v Maharashtra, 2004 Cr LJ 4634• Storage, loading and unloading of red chillies in a godown

situated in a residential locality was alleged to have caused public nuisance - residents suffering from sneezing, coughing, asthma, irritation of skin and burning sensation - Supreme Court observed that there must at any rate, be an imminent danger to health or the physical comfort of the community in the locality in which the trade or occupation is conducted.

• Imminent danger means a sense of urgency that failure to take recourse would bring irreparable danger to the public.

CONFLICT OF JURISDICTION• Water and air Acts cover the area in relation to the control of

water and pollution of a special statute with machinery to redress grievances - each law a code

• do these special statutes aiming protection of the environment prevail over, or repeal, s 133 - procedural formalities make the remedies under those laws a complex time-consuming process – sometimes court seizing of the matter after happening of harm

• ‘Repeal’ being a legislative exercise, special laws do not repeal the law of public nuisance - no implied repeal – special law overrides general law, only if, both operate on the same field - one relates to pollution control, the other refers to maintenance of public order and tranquility

• compelling the aggrieved citizens to approach the board brings no effective results being more or less a complainant before a judicial magistrate – Cr PC provides a mechanism for quick remedy against nuisance.

Page 18: 01, 02 & 03

State of MP v Kedia Leather and Liquor Ltd (2003) 7 SCC 389 (Magistrate directed closure as the industries discharged effluents to the stream resulting in public nuisance. The high court held subsequent enactments impliedly s. 133) • The area of operation in the Code and the pollution laws in

question are different with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side. While… the provisions of section 133 of the Code are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive and the question of one replacing the other does not arise.

• Perhaps one may not agree with these arguments when one notes that the use of s.133 to combat pollution enters the domain of laws relating to pollution of water and air. It removes the same evil although methods differ. This difference makes the public nuisance remedy easier than those available under the special laws. Despite possible criticism on a highly legalistic plane, it cannot be denied that Kedia Leather has strengthened the environmental content in the provision of law of nuisance. The people in far-off villages and towns may find it extremely difficult to approach the Supreme Court or the high courts with complaints against ecological woes of their locality. Nor will succeed in getting a quick and effective remedy by approaching the board - executive magistrates empowered with jurisdiction to move the machinery against public nuisance are available in every district with a grass root remedy.

• the executive magistrates subject to the dictates of the higher echelons of government, necessary to free them from this

Page 19: 01, 02 & 03

official bias or undue influence - mechanism to be evolved to make them act independently - is judicial supervision and vigilance sufficient for tailoring standards of their behavior - necessary to develop s 91 CPC remedy, a judicial remedy not an administrative remedy, against public nuisance.

State of MP v Kedia Leather and Liquor Ltd (2003) 7 SCC 389 (Magistrate directed closure as the industries discharged effluents to the stream resulting in public nuisance. The high court held subsequent enactments impliedly s. 133)

• The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side. While… the provisions of section 133 of the Code are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive and the question of one replacing the other does not arise.

• Perhaps one may not agree with these arguments when one notes that the use of s.133 to combat pollution enters the domain of laws relating to pollution of water and air. It removes the same evil although methods differ. This difference makes the public nuisance remedy easier than those available under the special laws. Despite possible criticism on a highly legalistic plane, it cannot be denied that Kedia Leather has strengthened the environmental content in the provision of law of nuisance. The people in far-off villages and towns may find it extremely

Page 20: 01, 02 & 03

difficult to approach the Supreme Court or the high courts with complaints against ecological woes of their locality. Nor will succeed in getting a quick and effective remedy by approaching the board - executive magistrates empowered with jurisdiction to move the machinery against public nuisance are available in every district with a grass root remedy.

• the executive magistrates subject to the dictates of the higher echelons of government, necessary to free them from this official bias or undue influence - mechanism to be evolved to make them act independently - is judicial supervision and vigilance sufficient for tailoring standards of their behavior - necessary to develop s 91 CPC remedy, a judicial remedy not an administrative remedy, against public nuisance.