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UNIT - I
INTRODUCTION
CONCEPT OF ENVIRONMENT
The expression ‘environment’ connotes surroundings. The environment contains air, water, food, sunlight etc. Environment affects all the living creatures, including plants and trees. A number of necessities of life are derived from the environment. Therefore, it can be said that the environment is the life support system.
Meaning :
According to section 2(a) of the Indian Environment (Protection) Act, 1986, the term ‘Environment’ includes water, air, land and human beings, other living creatures, plants, micro‐organism and property.
Components of ‘Environment’ :
‘Environment’ consists of three kinds of components –
1) Non‐living component and Abiotic component– it includes non‐living things like soil, air and water.
2) Living component and Biotic component– it consists of flora and fauna including man.
3) Energy component– it includes solar energy, geo‐chemical energy, thermo‐electrical energy, hydro‐electrical energy, hydro‐electrical energy, nuclear atomic energy, energy due to radiation etc. that helps maintaining the real life of organisms.
Types of Environment :
Environment can be divided into the following two types –
1) Natural environment;
2) Man‐made environment.
Objectives of Environment Protection :
The main objectives of environment protection are –
1) Controlled, restricted and mindful use and exploitation of natural resources;
2) Maintenance and protection environment quality;
3) Protecting and balancing the eco‐system;
4) Achievement of substantial development;
5) Environment awareness among the people;
6) Working out the pollution problem;
7) Environment education and training; and
8) Punishment to the polluter.
MEANING OF ENVIRONMENTAL POLLUTION
The term ‘pollution’ is derived from the Latin word ‘pollutionem’ which means defilement. Thus, defilement of environment is called environmental pollution.
The Indian Environment (Protection) Act, 1986 does not define the term ‘pollution’. But, section 2(c) of the Act defines ‘environment pollution’ which means the presence in the environment of any environment pollutant and ‘environment pollutant’ means any solid, liquid or gaseous substance present in such concentration, as may be injurious to environment.
According to Mc Laughtin ‘Environmental Pollution’ means the introduction by man into any part of the environment, of wastes, water energy, energy or surplus energy which changes the environment directly or indirectly adversely to affect the opportunity of men to use or enjoy it?
Factors Responsible for Environment Pollution :
The main factors responsible for causing environmental pollution are –
1) Population growth;
2) Indiscriminate use of technology;
3) Uncontrolled use of pollutants;
4) Unmindful/careless exploitation of natural resources;
5) Industrial development;
6) Discharge of pollutants into air and water;
7) Failure in food protection;
8) Failure to control noise pollution;
9) Inadequate management of elctro‐magnetic energy; and
10) Inappropriate management of sound and heat.
Categorization of Environment Pollution :
Environment pollution can be classified into two categories –
1) Natural pollution : This category of pollution includes flood, earthquake, cyclone and drought. These natural calamities are capable of causing destruction that may be ruinous.
2) Man‐made pollution : This kind of pollution is caused by unmindful and careless activities of human beings, like industrial wastes and toxic gases produced by industries, and reckless use of forest wealth causing deforestation. These have adverse effect on soils and land which increases the frequency of flood and drought.
Environmental Pollution and its Remedies :
The remedies for environmental pollution are as follows –
1) Civil Remedies : The civil remedies are in the nature of compensation or damages to the victim and cost to recover the disturbed ecological balance.
2) Criminal Remedies : The criminal remedies are in the nature of penal action/punishment.
3) Other Remedies : The other remedies for environmental pollution are available as under–
i) Remedies under constitutional law.
ii) Remedies under Law of Torts.
iii) Remedies under Insurance Laws
iv) Remedies under Labour Laws
v) Remedies under Wild Life (Protection) Act, 1972.
vi) Remedies under Forests (Conservation) Act, 1980.
ENVIRONMENT PROTECTION AND INTERNATIONAL CAMPAIGN
There are some unique features about international law which make it international environmental law.
a) Sustainable Development – The concept and International perspective : The term ‘sustainable development’ was used at the time of Cocoyoc declaration on environment and development in the early 1970s. Since then it has become trademark of international organisations dedicated to achieving environmentally benign or beneficial development.
Sustainable development means an integration of developmental and environmental imperatives. To be sustainable, development must possess both economic and ecological sustainability. It indicates the way in which developmental planning should be approached.
The ‘Maltese Proposal’ at the U.N. General Assembly of 1967, contended that natural resources are common heritage of mankind and that this also needed legal protection by the international community at large.
i) Stockholm Declaration : The concept of sustainable development further received impetus in the Stockholm Declaration resulting from the United Nations conference on Human Environment of 1972.
For example Principle 3 of the Stockholm Declaration states that the Earth’s capacity to produce vital renewable resources be preserved and wherever practical be restored.
The concept of sustainable Development received further boost in “World Conservation Strategy” which was prepared in 1980 by the ICUN (World Conservation Union) with the advice and support of UNEP (United Nations Environment Programme) and WWF (World Wide Fund). This concept was also recognised by the South Pacific Commission in 1980 and World Charter for Nature of 1982.
ii) Brundtland Commission : The term “sustainable development” was brought into common use by the World Commission on Environment and Development (The Brudntland Commission) in its 1987 report over‐ Our common future. The World Commission on Environment and Development was set up by the General Assembly of the United Nations in the year 1983. The Brundtland Report defines sustainable development as follows–
“Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.”
According the Brundtland Report the concept of sustainable development contains two key concepts–
a) The concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given, and
b) The idea of limitations imposed by the State of technology and social organisation on the environment’s ability to meet present and future needs.
Thus, sustainable development is a process of change, in which economic and fiscal policies, trade and foreign policies, energy, agricultural and industrial policies all aim to induce development paths that are economically, socially and ecologically sustainable. Sustainable development also requires that the adverse impacts on the quality of air, water and other natural elements are minimised so as to sustain the ecosystem’s overall integrity.
General principles, rights and responsibilities for environment protection and sustainable development adopted by the Brundtland Commission are as under–
i) Fundamental Human Right.
ii) Inter‐Generational Equity.
iii) Conservation and Sustainable use
iv) Environmental standards and monitoring
v) Prior environmental assessments
vi) Prior Notification, Access and due process
vii) Sustainable development and assistance.
viii) General obligation to co‐operate.
Thus, for achieving sustainable development, economy and ecology will have to merge.
In 1991, World Conservation Union, United Nations Environment Programme and World Wide Fund, jointly produced a document called “Caring For the Earth : A strategy for sustainable living” which defined the ‘sustainability’ as a characteristic or a state that can be maintained indefinitely whereas ‘development’ is defined as the increasing capacity to meet human needs and improve the quality of human life.
iii) Earth Summit : The United Nations conference on Environment and Development (UNCED), popularly known as Earth Summit, was held in June 1992 at Rio de Janeiro wherein more than 150 governments participated. This earth summit was inspired and guided by a remarkable document of 1987, i.e. Brundtland Report. Some of the major achievements of Earth Summit lie in the form of following documents which it produced–
1) The Rio Declaration on Environment and Development : A series of principles defining the rights and responsibilities of states in this area.
2) Agenda 21 : A comprehensive blue print for global actions to affect the transition to sustainable development.
3) Forest Principle : A set of principles to support the sustainable management of forests worldwide.
4) Two legally binding conventions : i.e. the convention on climate change and convention on Biodiversity, which are aimed at preventing global climate change and the eradication of biologically diverse species. These conventions were signed by the representatives of more than 150 countries.
iv) U.N. Commission on Sustainable Development : The United Nations Commission on Sustainable Development (UNCSD) is a functional commission of the United Nations
Economic and Social Council (ECOSOC) and it originates from Chapter 38 of the Agenda 21, the most extensive document of the Rio Summit. This Commission was set up on 16 February 1993 as a Commission of the Economic and Social Council pursuant to Article 68 of the U.N. Charter. In June 1993 its first session was held in New York.
It is the main task of the commission–
1) to ensure the effective follow‐up of the Rio conference,
2) to enhance international co‐operation, and
3) rationalize the inter‐governmental decision making capacity for the integration of environment and development issues;
4) to examine the progress of the implementation of Agenda 21 at the national, regional and international level.
v) Earth Summit Plus Five : As envisaged in Agenda 21, a special session of U.N. General Assembly at New York on the environment was held in June 1997 which is also known as Earth Summit Plus Five. This special session is known as ‘Earth Summit Plus Five’ because it was after five years from the historic ‘Earth Summit’ in Rio de Janeiro in 1992, that representatives of various nations reviewed the progress they had made in achieving the goal of “Sustainable development’ and to save the planet Earth from further detoriation.
In the conference it was found that the planet’s oceans, forests and atmosphere are still in trouble, and its population of poor people is growing. The biggest disappointments was on global warming. Thus, the global warming is on the rise.
Later, the delegates agreed on a few concrete remedies in such critical areas as global warming.
vi) Kyoto Conference and Pact on Global Warming : On 11th December, 1997, delegates from 159 nations attending the World climate conference reached a historic accord which called for mandatory cuts in emission of green‐house‐gases by industrialised nations in the next millennium to help save the planet from potentially devastating global warming. The accord came after the ten‐day UN climate conference in Kyoto (Japan) and was adopted in the form of a protocol, which requires the industrialised countries as a whole to reduce their average annual emissions of six green‐house gases like carbon dioxide, methane, CFC etc.
vii) Global Environment Facility (GEF) : The Global Environment Facility (GEF) was set up during the 1992 Earth summit with 27 members initially. Today, it has about 500 projects in 119 countries with a total corpus of about seven billion dollars.
India, in the three day first ever assembly of U.N. sponsored Global Environment Facility (GEF) in April 1998, told the industrialised nations to enforce stringent emission norms and limit pollution levels to save the World from an impending ecological disaster as their high levels of economic activity and consumption were causing severe environmental degradation.
It is submitted that environment protection is a life and death issue. At the same time the development process must also go on. Environmental objectives have become developmental objectives. It is not a problem of the individual nations. In fact, it is the global problem and, therefore, the solutions will have to be sought at global levels. Sustainable development is the only way. Therefore, it is necessary to identify the salient principles of sustainable development and follow them so as to save this planet Earth from further deterioration.
b) Salient Principles of Sustainable Development : The concept of sustainable development has grown since its inception at the international fora and it has acquired different dimensions in terms of economic growth, development and environment protection. However, some of the salient principles of sustainable development as called out from Brundtland Report and other international developments such as Rio Declaration and Agenda 21, are as under–
i) Inter‐Generational equity
ii) Use and Conservation of Natural Resources
iii) Environmental Protection
iv) The Precautionary Principle
v) The Polluter pays principle
vi) Obligation to Assist and Co‐operate
vii) Eradication of Poverty, and
viii) Financial Assistance to the Developing countries.
i) Inter‐Generational Equity : The central theme of the theory of inter‐generational equity is the right of each generation of human beings to benefit from the cultural and natural inheritance of the past generations as well as the ‘obligation’ to preserve such heritage for future generation. Inter‐Generational equity requires conserving the diversity and quality of biological resources, and of renewable resources such as forests, water and soils.
Principle 3 of the Rio Declaration of 1992 says that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of the present and future generation.
ii) Use and Conservation of Natural Resources : In order to meet the needs on sustainable basis, it is absolutely necessary to use the Earth’s natural resources carefully and the natural resource base must be conserved and enhanced.
Principle 23 of the Rio Declaration specially says that the environment and natural resources of people under oppression, domination and occupation shall be protected.
iii) Environment Protection : The protection of environment is an essential part of sustainable development. Without adequate environment protection, development is undermined; without development, resources will be inadequate for needed investments and environment protection will fail. The strong environment policies complement and reinforce sustainable development.
iv) Precautionary Principle : The precautionary principle is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for
its own sake.7
The essential ingredients of the precautionary principles are :
a) Environmental measures‐by the state government and the statutory authorities‐must anticipate, prevent and attack the causes of environmental degradation.
b) When there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
c) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign (‘Reversal of burden of proof’).
d) Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential.
The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.
In other words, the burden of proof is to be placed on those attempting to alter the status quo. This is often termed as a “reversal of the burden of proof’, because otherwise in environmental cases, those opposing the change would be compelled to
shoulder the evidentiary burden, a procedure that is not fair. Therefore, it is necessary that a party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it must bear this burden. If insufficient evidence is presented by the latter to alleviate concern about the level of uncertainty, then the presumptions should operate in favour of environmental protection.
v) Polluter Pay Principle : It means that polluter should bear the cost of pollution as the polluter is responsible for pollution. This principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution. Under it, it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.
The principle was promoted by the Organization for Economic Co‐operation and Development (OECD) during the 1970s when there were demands on Government and other institutions to introduce policies/mechanism to protect the environment and the public from the threats posed by pollution in a modern industrialized society. Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters. Thus, this principle has been incorporated into the European Community Treaty. Art. 102 R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventive action, the need for environmental damage to be rectified at source, and that the polluter should pay.
It may be noted that the ‘polluter pays’ principle evolved out of the rule of ‘absolute liability’ as laid down by the apex court in Shriram Gas Leak Case. In the Bichhri Case the apex court nicely weighted and balanced the concept of absolute liability and ‘polluter pays’ principle. The court interpreted the principle to mean that the absolute liability for harm to the environment extends to the cost of restoring the environmental degradation in addition to compensating the victims of pollution.
The court observed that Sec. 3 and 5 of the Environment (Protection) Act, 1986, empower the Central Government to give directions and take measures for giving effect to this principle. The ‘power to lay down the procedures, safeguards and remedial measures’ under the omnibus power of taking all measures impliedly incorporated the polluter pays principle. Also, in Vellor Citizens’ Welfare Forum v Union of India, the apex court directed the Central Government to constitute separate authorities under Sec. 3(3) of the Environment Act and directed the authorities to assess the loss to the ecology/environment and recover the amount from the polluters.
vi) Obligation to Assist and co‐operate : The environmental problem is not the problem of an individual or that of one country. It is a global problem and it can be tackled only with the assistance and co‐operation of all. Principle 9 of the Rio Declaration provides that the states should cooperate to strengthen endogenous capacity ‐ building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies. Principle 27 of the Rio Declaration expects the people and the states to co‐operate in good faith and in a spirit of partnership in the further development of international law in the field of sustainable development.
vii) Eradication of Poverty : The sustainable development has to address the problem of the large number of people who live in absolute poverty and who cannot satisfy even their basic needs. At the Stockholm Conference in 1972, former Prime Minister Mrs. Indira Gandhi said, “Of all pollutants we face, the worst is poverty”. The Brundtland Report has rightly pointed out that poverty reduces people’s capacity to use resources in a sustainable manner and hence it intensifies pressure on the environment.
The UN Conference on Environment and Development, i.e., “Earth Summit” of 1992 has brought about a leap in public awareness of key environment and development issue and rightly projected that elimination of poverty is a must for sustainable development, particularly in the developing countries.
viii) Financial Assistance to Developing Countries : The people in developing countries strain their natural resources and overexploit them to meet their basic needs. The developing countries also do not have the finances and modern technology to follow the path of development which is sustainable. Therefore, the financial assistance and transfer of technology from the developed nations to the developing nations is a must if we want to achieve the goal of sustainable development and environment protection. In fact, this was one of the major demands of developing countries at the “Earth Summit” of 1992.
The concept of sustainable development has grown from Stockholm Conference to Rio Summit and thereafter through various national and international fora. Some of the salient principles of the sustainable development have been identified. But the real task which lies ahead is that of implementation. For this what we need is the political will of the North and the South to act in co‐ordination to protect this planet Earth from further deterioration.
ENVIRONMENTAL PROTECTION AND CONSTITUTION OF INDIA
Introduction : To protect and improve the environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare state. The Indian constitution contains specific provisions for environmental protection under the chapter of Directive Principles of State Policy and Fundamental
Duties. The absence of a specific provision in the constitution recognizing the fundamental right to environment has been set off by judicial activism in the recent times.
India is the first country to provide constitutional protection to environment. The constitution (42nd Amendment) Act, 1976 added a new part IV‐A dealing with fundamental duties to the Indian Constitution. It consists of only one Article 51‐A. Article 51‐A enlists ten fundamental duties of which one is bound to protect and improve natural environment.
Protection of Environment as a Fundamental Duty : Part IV‐A contains fundamental duties of the citizens of India, Article 51‐A(g) of Part IV‐A of the Constitution provides that –
“It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creature.”
The Apex Court in M.C. Mehta v. Union of India1 , has held that under Article 51‐A(g) it is the duty of the Central Government to introduce compulsory teaching of lessons at least for one hour a week on protection and improvement of natural environment in all educational institutions of the country. The Apex Court directed the Central Government to get text books written on that subject and distribute them to the educational institutions free of cost.
After amendment, forest and wildlife were transferred from the State list to the concurrent list. This shows the concern of Indian Parliamentarians to give priority to environment protection by bringing it on the national agenda.
Environment protection and Directive Principles of State Policy : Part IV of the Constitution is concerned with the directive principles of State policy. The Constitution (42nd Amendment) Act, 1976 added a new directive principle in Article 48‐A which deals specifically with protection and improvement of environment.
Article 48‐A protection and improvement of forests and wild life–
“The State shall endeavour to protect and improve the environment, and to safeguard the forests and wild life of the country.”
In the case of T. Damodhar Rao v S.O. Municipal Corporation Hyderabad2 , it was pointed out by the court that in view of Article 48‐A and 51‐A(g), it is evident that the protection of environment is not only the duty of citizens but it is also the obligation of the state and all other state organs including courts.
Lacuna in Law : [Art. 51(A)(g)] ‐ (i) The scope of fundamental duty is limited to only forests, lakes, rivers and wildlife and the expression “natural environment”, includes many others in the field of pollution such as ‘noise’, ‘light’ ‘radioactive and hazardous wastes’ etc.
(ii) It imposes no obligation on non‐citizens.
Writs – Constitutional Remedies
Writ jurisdiction has been conferred on the Supreme Court under Constitution of India under Article 32 and on all the High Courts under Article 226 of the Constitution. The Indian judiciary has made extensive use of these constitutional provisions and developed a new ‘environmental jurisprudence’ of India.
In India, most of the environmental matters have been brought before the judiciary through “public Interest litigation” (PIL).
The writ procedure is preferred over the conventional suit because it is speedy, relatively inexpensive and offers direct access to the highest courts. However, there are certain limitations on the writ jurisdiction‐
i) Locus Standi : Only an aggrieved person could petition the courts for a writ. However, recently, the Supreme Court has recognized that where a public wrong is caused by the state, any member of the public acting in good faith can maintain an action for redressal.
ii) Alternative Remedy : Where no fundamental right is involved, the High Court and Supreme Court will decline to exercise their jurisdiction if an equally effective remedy is available and has not been used.
iii) Laches : A writ petion may be rejected on the ground of inordinate delay. However, the doctrine of laches is often relaxed in environmental actions brought in the public interest.
Article 32 and 226 of the Constitution empowers the Supreme Court and the High Courts, respectively to issue directions, orders or writs, including writs of habeas corpus, mandamus, certorari, quo‐warranto and prohibition. The writs of mandamus, Certorari and prohibition are generally resorted to in environmental matters.
The writ remedy is resorted to frequently because–
i) it helps in disposal of a case in shorter period,
ii) it involves less financial burden,
iii) there is no need of oral evidence,
iv) the aggrieved party directly approaches a higher court and thus saves time, energy and financial expenses.
Public Interest Litigation (PIL) or Social Action Litigation (SAL) : In a public interest case, the subject matter of litigation is typically a grievance against the violation of basic human rights of the poor and helpless or about the content or conduct of government policy. The petitioner seeks to champion a public cause for the benefit of all society. In this litigation a judge plays a large role in organizing and shaping the litigation and in supervising the implementation of relief. Most of environmental actions in India fall within this class. The leading environmental cases decided by the Supreme Court, which have
resulted in the closure of limestone quarries in the Dehradun region‐Dehradun Quarrying case3, the
installation of safeguards at a chlorine plant in Delhi (MC Mehta vs Union of India)4 and the closure of
polluting tanneries on the Ganga (M.C. Mehta vs. UOI)5 fall within the category of citizens’ standing
cases.
PIL is a collaborative effort between the court, the citizens and the public officials, where procedural safeguards have a distinguished utility and may be released to enable relief.
In Tarun Bharat Sangh vs. UOI6 the Supreme Court observed: “This litigation (PIL) should not be treated
as the usual adversarial litigation. Petitioners’ concern for the environment, ecology and the wildlife should be shared by the government.”
Important Cases : Rural Litigation And Entitlement Kendra, Dehradun vs State of U.P.7 Facts‐ In July 1983
representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal limestone quarrying in the Mussoorie ‐ Dehradun region was devastating the fragile ecosystem in the area. The court treated the letter as a writ petition under Art‐32 of the constitution.
Issue : When mining rights were already given to lessees by the Govt. on conditions laid down under a specific law, can the court interfere on the ground that the mining activities cause ecological disturbance and violate the rights of the people to live?
Observation : According to the court the hardship caused to the lessees is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with nominal disturbance of ecological balance and without avoidable hazards to them and to their cattle, homes etc.
The court observed, “… mining in this area has to be stopped as far as practicable, we also make it clear that mining activity has to be permitted to the extent necessary in the interest of the defence of the country as also for the safeguarding of the foreign exchange position (limestone is used for steel manufacturing and defence armaments).
Decision : In 1998, the court directed that all mines in the Dehradun valley remain closed, except three operations. The court concluded that continued mining in the valley violated the forest (conservation) Act. The court issued order to reforest the valley.
Kinkri Devi Vs State of H.P.78
Facts : The petitioners alleged in their petition (a social action litigation) that unscientific and uncontrolled quarrying of the limestone has caused damage to the Shivalik Hills and is imposing danger to the ecology, environment and inhabitants of the area.
Observation of the Court : If a just balance is not struck between the development through tapping of natural resources and the protection of ecology and environment, there will be a violation of fundamental rights conferred by Art. 14 and 21 of the constitution.
The court observed : “Natural resources have got to be tapped for the purpose of social development but tapping has to be done with care so that ecology and environment may not be affected in any serious way. The natural resources are permanent assets of mankind and are not intended to be
exhausted in one generation. If industrial growth is sought to be achieved by reckless mining resulting in loss of life, loss of property, loss of amenities like water supply and creation of ecological imbalance there may ultimately be no real economic growth and no real prosperity”.
The Court further Observed : “There is both a constitutional pointer to the state (Art. 48 A of Directive Principles) and constitutional duty of the citizens [Art. 51‐A(g) of Fundamental Duties] not only to protect but also to improve the environment. The neglect or failure to abide by the pointer or to perform the duty is nothing short of a betrayal of the fundamental law which the state, and indeed, every citizen is bound to uphold and maintain.”
Decision : The court will be left with no alternative but to intervene effectively by issuing appropriate writs, orders and directions including the directions as to closure of the mines, and the total prohibition of the grant or renewal of mining leases.
M.C. Mehta Vs Union of India9 (Taz Trapezium Case)
Facts : According to the petitioners the foundries, chemicals /hazardous industries and the refinery at Mathura are the major sources of damage to the Taj. The SO2 emitted by the Mathura Refinery and the industries when combined with oxygen‐with the aid of moisture‐in the atmosphere forms sulphuric acid called “Acid Rain” which has a corroding effect on the gleaming white marble. Industrial/ Refinery emissions, brick‐kilns, vehicular traffic and generator‐sets are primarily responsible for polluting the ambient air around Taz Trapezium (TTZ).
The Court Observed : The “precautionary principle” and “Polluter Pays Principle” have been accepted as part of the law of the land. The ‘onus of the proof’ is on industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air.
The court held that 292 Industries located and operating in Agra must change over within fixed time schedule to natural gas as industrial fuel or stop functioning with coke/coal and get relocated. The Supreme Court further directed that all emporia and shops functioning within the Taj premises to be closed.
T. Damodhar Rao Vs S.O. Municipal Corpn. Hyderabad10
Facts and Issue : The broad question that falls for consideration in this case is whether the LIC of India and the Income Tax Department, Hyderabad can legally use the land owned by them in a recreational zone within the city limits of Hyderabad for residential purposes contrary to the municipal development plan. The said plan earmarked 150 acres for recreational park. These two public agencies bought 37 acres of land to build residential homes and the municipal corporation had already allowed several of these homes to be built.
The Court Observed : “The protection of the environment is not only the duty of the citizen but it is also the obligation of the state and state organs including courts . In that extent, environmental law has
succeeded in unshackling man’s right to life and personal liberty from the clutches of common law theory of individual ownership. The enjoyment of life and its attainment and fulfillment guaranteed by Art. 21 embraces the protection and preservation of nature’s gift without which life cannot be enjoyed. There can be no reason why practice of violent extinguishments of life alone should be regarded as violative of Art. 21. The slow poisoning by the polluted atmosphere caused by environmental pollution should also be regarded as amounting to violation of Art. 21.”
Decision : The court held that neither the municipal corporation’s permission nor the state government’s relaxation of layout rules and building bye‐laws could grant what the development plan prohibited, viz., residence on an area set aside for a park. Once approved, the development plan could only be altered by a complex procedure specified in the A.P. Urban Areas (Development) Act of 1975.
India’s International obligation : India is an important member of the international community. Article 15 lays down that the state shall endeavour to–
a) promote international peace and security;
b) maintain just and honourable relations between nations;
c) faster respect for international law and treaty obligations in the dealing of organised people with one another, and
d) encourage settlement of international disputes by arbitration.
The objectives of environmental agreements would be effectively achieved if all relevant states become parties to them. Rigorous implementation including monitoring of compliance is ensured.
Article 253 of the India’s Constitution provides–
“Notwithstanding any in the foregoing provisions of the chapter, parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”
In India Parliament used this power to implement the decisions reached at the “Stockholm Conference”; several Acts were passed like–
i) Air Act
ii) Environment Act
iii) Wildlife Protection Act.
In People’s Union for Civil Liberties v. Union of India11 , the Supreme Court held that the provisions of international covenant, which elucidates and goes to effectuate fundamental rights guaranteed by our constitution can certainly be relied upon by courts as facets of those fundamental rights and hence enforceable as such.
Under the Constitutional mandate of Article 51, India had done a good deal of work by participating in many international conferences relating to environment. In some cases she was only a signatory State but in other cases she has gone ahead. She has ratified them and taken suitable action to implement them.
Indian position with respect to international agreements relating to environment may be indicated as follows–
1) International Plant protection convention – Rome (1951)
2) U.N. Convention on Biological Diversity (Nairobi 1992).
3) U.N. Conference on Environment and Development‐ Earth Summit (Rio de Janeiro, 1992).
Further, the international covenants and conventions can be recognised and enforced by the courts in India if they are not in conflict with the provisions of the Constitution which is Supreme Law.
DEVELOPMENT OF ENVIRONMENTAL JURISPRUDENCE IN INDIA
Environment Protection and Ancient India : The campaign of environmental protection is not a new concept, but it has been in prevalence from time immemorial. The concept of environment found place in the Kautilya’s Arthasastra. In other words Kautilyan Jurisprudence dealt with law relating to environmental protection. The rulers as well as each individual were under a duty to protect the nature. The animals, trees, water, air and land were treated as a divine power and they were worshipped by ancient men.
According to Rigveda, the universe consists of five important basic elements, namely;
i) Earth
ii) Water
iii) Air
iv) Fire, and
v) Ether.
These basic elements form the foundation of all creatures in the universe. The world history reveals that almost all religious and philosophical writings expressed concern for protection and adequate use of natural resources and also need for preserving natural wealth for the sake of future generations.
Religion and Environmental Protection : During ancient time religion and protection of environment were closely related. In the absence of systematic and specialised administration of justice, the religion was regarded as an uncoded law of conduct to follow and violation of it was considered as a devil act. Not only in ancient time but even today the religious preachings insist upon conservation and preservation of the natural environment.
Environment Protection under Hindu Mythology : Hindu religion is one of the oldest and revered religions of the universe. Even during Vedic time men were aware about the importance of environment in social human life. In fact ancient men treated the natural resources like rivers (Ganga, Yamuna etc.), trees (tulsi, peepal and Banyan etc) mountains etc as a divine powers. These were worshipped and were sources of religious faith and belief.
Even Vedas, Upnishads and Smritis described the necessity of environment protection. By one form or other the Hindu society adopted worshipping attitude towards the earth, water, air, trees, plants, rivers, mountains, animals and other natural resources. The existence of these things was believed to be different forms and features of the Gods and Goddesses who created the whole world of living and non‐living, animals and things respectively.
The Code of Manu expressed the concern for protection of environment. Notably, Code of Manu i.e. Manusmriti, had regulated the Hindu way of life since the Vedic period. Even Yajnyavalka Smriti speaks about man’s obligation towards environment protection. It says if the natural environment remains undisturbed it would bring purity, prosperity and health to human life.
Buddhism and Environment Protection : The advent of Buddhism had taken place at the end of Vedic period. The essence of Buddhism is non‐violence, truth, love and respect for living creatures including plants and trees. Buddhism also insisted over use of natural resources by man in a very rational manner.
The fundamental principles of Buddhism are simplicity and non‐violence. The principle of non‐violence is applicable to living and non‐living bodies under the Buddhist religion.
Jainism and Environmental Protection : Jainism emphasised a greater stress on the destruction of natural resources. This religion preaches that for satisfaction of human needs the natural resources should be exploited with thoughtful restriction. Jainism provides absolute prohibition on the eating of any kinds of meat. Thus, the cruelty to and killing of animals are not permitted under the Jain religion. There are some vows in Jainism which exclusively deal with the environmental protection. These vows are known as Karmdan.
Islam and Environmental Protection : According to Islamic thought the preservation and conservation of the natural resources have been given significant place. The importance of balance between man and nature based on divine principles has been described in Islamic scriptures. Holy Quran refers to the various components of environment at length. It states that man should not neglect the creatures and earth created by the God.
Sikhism and Environmental Protection : The Sikh religion also speaks regarding conservation and preservation of natural wealth. In view of Guru Nanak Dev, the spirit of God is present in the nature and human beings depend on the nature.
It is, therefore, submitted that all religions cared for environment protection and also encouraged limited use of natural resources.
Control of Environmental Pollution during British Raj : During the British Raj though there was no exclusive enactment to deal with the offences concerning environmental pollution but in 1980 for the first time to control environmental pollution certain positive measures were incorporated into the Indian Penal Code, 1860.
Judicial Development of Environmental Law : Judicial response to almost all environmental litigations has been very positive in India. Public Interest Litigation has become very popular in the field of environment. Contrary to past practices as in J.M. Desai v Roshan Kumar, locus standi was the greatest hurdle. In this case the District Magistrate gave no objection certificate for a cinema house close to trial ground, compost depot, a school and public latrines. The grant was against rules. Even then, the High Court and Supreme Court were reluctant to interfere on the ground that the rival applicants who challenged the decision had no locus standi. But the position today is that a person acting bonafide and having sufficient interest can move the courts for redressing public injury, enforcing public duty, protecting social and collective rights and vindicating public interest.412
The competence to invoke the original jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution is a remarkable step forward in providing protection for the environment. Courts have widened the dimensions of substantive rights to health and a clean unpolluted environment. In most cases, such progress was made with the aid of public interest litigation.
In Tarun Bharat Singh Alwar v. Union of India13, a social group action challenged the legality of granting a mining licence in the protected area of a reserved forest. Upholding contention, the Supreme Court observed–
“This litigation should not be treated as the adversial litigation. Petitioners are acting in aid of a purpose high on national agenda. Petitioners’ concern for the environment, ecology, wildlife should be shared by the Government”14.
This observation of the court is significant as it emphasises the rationale of public interest litigation in environmental issues. The State is directed by the Directive Principles to protect the environment. Any person who raises an environment issue, whether individual, group or institution is equally concerned with the problem and such litigation can never be construed as one of adversial confrontation with the state.
The range of issues is very broad. It extends from compassion to animals, privileges of tribal people and fishermen, to the eco‐system of the Himalayas and forests,15 land use patterns and eco‐tourism. The cause of environment being taken up through public interest litigation is championed by a wide spectrum of people in society. Lawyers, association of lawyers, environmentalists, groups and centres dedicated to environmentalists, groups and centres dedicated to environmental protection, forest conservation, welfare forums16 including those for tribunal welfare, societies registered under the Societies Registration Act and consumer research centres have successfully agitated environmental issues before courts. Further, Urban Social Activists17, Chairmen of rural voluntary associations and residents of housing colonies were also involved in advocating environmental matters. While in some
cases letters were treated as writ petitions, in some others paper reports18 were responsible for judicial action. In this judicial development, environmental law has been vigorous and imaginative.
Special legislation pertaining to environment protection–
1) The Water (Prevention and control of Pollution) Act, 1974.
2) The Air (Prevention and Control of Pollution) Act, 1881.
3) The Forest (Conservation) Act, 1980.
4) The Environment (Protection) Act, 1986.
In conclusion, we observe that environment had always been a core issue in ancient times, though the subject as a separate discipline emerged after industrialization. Industrialisation resulted in exploitation of natural resources and gave rise to environmental pollution. By passage of time, environmental pollution posed as a major problem before the world.
In order to control the situation, a series of legislations were passed after a long spell of discussions. The Apex Court has also contributed a lot. Recently the prohibition of smoking at public places is a classic example.
But the whole exercise will be futile if there is no cooperation from the common mass. Hence, there should be awareness among people so that the laws relating to environment can be implemented and the dream of a pollution free environment can be brought into reality.
ENVIRONMENT PROTECTION AND SUSTAINABLE DEVELOPMENT
The expression “environment” connotes surroundings.
According to Section 2 (a) of the Indian (Protection) Act, 1986, the “Envoronment” includes air, water and land and human beings, other living creatures, plants, micro‐organism and property.
What is sustainable development :
An improvement in human wellbeing that allows us to meet the needs of the present without compromising the ability of future generation to meet their own needs, is called sustainable development in the context of environmental matter.
Role of Judiciary in protecting environment and sustainable development :
In India, there has been environmental degradation due to overexploitation of resources, depletion of traditional resources, industrialisation, urbanisation and population expansion
India has been taking all possible steps for the protection and improvement of the environment and aiming at sustainable development.
Parliament, State Legislatures and administrators are taking actions for pollution control and environmental protection. Judiciary has not lagged behind in controlling pollution and protecting environment.
India has enacted various laws at almost regular intervals to deal with the problems of environmental degradation. At the same time the judiciary in India has played a pivotal role in interpreting the laws in such a manner which not only helped in protecting environment but also in promoting sustainable development. In fact, the judiciary in India has created a new “environmental jurisprudence”.
The problem of environmental degradation is a social problem. Considering the growing awareness and the impact of this problem on the society in regard thereto, law courts should also rise upto the occasion to deal with the situation as it demands in the present day context. Law courts have a social duty since it is a part of the society. Socio‐economic conditions of the country cannot be ignored by a court of law because the benefit of the society ought to be the prime consideration of law courts. Thus, the courts must take cognizance of the environmental problems. The courts are required to strike a balance between the development and ecology and there should be no compromise with each other. In other words, the courts while dealing with the problem of environmental degradation, must apply the principles of sustainable development.
The judiciary in India has played a very important role in the environment protection and has applied the principles of sustainable development while deciding the cases.
It is, therefore, necessary to study and analyse a few important cases in this area. Most of the environmental cases have come before the courts through ‘Public Interest Litigation’ (PIL)
Protection of forests and Wildlife : Forests help in maintaining the ecological balance. They render climate equable, add to the fertility of the soil, prevent soil erosion etc. They shelter wild animals, protect tribal people etc.
The Supreme Court recognised this role in Rural Litigation and Entitlement Kendra v. State of U.P.19 , considering the need to stop the mining that caused an ecological imbalance in forest area.
The Supreme Court observed –
“The trees in the forest draw water from the bowels of the earth and release the same into the atmosphere by the process of transpiration and the same is received back by way of rain as a result of condensation of closed framed out of the atmospheric moisture. Forests thus help the cycle to be completed. Trees are responsible to purify air by releasing oxygen into the atmosphere by the process of photosynthesis. It has, therefore, been rightly said that there is a balance on earth among air, water, soil and plant. Forests hold up the mountain, cushion the rains and control the floods. They sustain the springs, they break the winds; they foster the bulks; they keep the air cool and clean. Forests also prevent soil erosion.”
In this way, forests are beneficial from environmental and ecological standpoints.
The Supreme Court also has shown its concern for protection and conservation and in different cases issued directions to stop the illegal felling of trees.
In T.N. Godavarman Thirumulkpad v. Union of India20 , the Supreme Court issued interim directions that all the on going activities within any forest in any state throughout the country, without the permission of the Central Government must be stopped forthwith. Running of saw mills including veneer or plywood mills within the forests was also stopped. Felling of trees in the State of Arunanchal Pradesh was totally banned in certain forests whereas in other states it was suspended in accordance with the working plan of the State Government. Movement of cut trees and timber from any of the seven North‐Eastern states to any other State was completely banned. The court issued directions to stop felling of trees in other states such as the State of J & K, Himachal Pradesh and Tamil Nadu, with a view to protect and preserve the forests.
In T.N. Godavarman Thirumulkpad v. Union of India21, it was brought to the notice of the Supreme Court that under the garb of removing infected trees in accordance with the orders of the court, trees having no disease were also cut. The Supreme Court directed the State Government and its functionaries to reprain from cutting any tree/trees till further orders, even if it is found to be diseased.
Industrial Development and Sustainable development : Industry is central to economics of the modern societies. It is essential to developing countries to widen their development base and meet the growing needs. Industry extracts material from the natural resources and inserts both products and pollution into the human environment. It has the power to enhance or to degrade the environment and it does both. Industrial activity has given rise to air, water and land pollution. However, with the industrial growth and urbanisation these problems have also multiplied.
During the recent years, there has been growing awareness of environmental degradation/pollution in India. Accordingly, the people as well as the courts have shown their anxiety about the situation arising out of industrial growth and pollution. Some of the important judicial decisions in this regard can be studied as under.
Industrial Pollution and Sustainable Development : A monumental judgement was delivered by the Supreme Court in M.C. Mehta v. Union of India22 . Bhopal catastrophe is only a manifestation of potential hazards of all chemical industries in India, none of which are amenable to effective regulation. After the Bhopal disaster, a major leakage of oleum gas took place from one of the Units of Shriram Chemicals in Delhi and this leakage affected a large number of persons both amongst the workmen and the public. In this case the court has evolved many principles which are new to the Indian “environmental jurisprudence”.
At the very outset the court considered the question whether the plant could be allowed to recommence the operation in the present state and condition and if not what measures are required to be adopted against the hazards of possibility of leaks, explosion, pollution of air and water etc., in this respect. The court gave priority to this question because some other important consequences were related with it which required the immediate attention.
First, because about 4000 workman were thrown out of employment because of the closure of the plant.
Secondly, the short supply of chlorine which was being produced by the said plant could have affected many activities in Delhi.
Thirdly, the production of downstream products would have also been seriously affected resulting to some extent in short supply of these products.
The Supreme Court appointed an expert committee to suggest certain measures to remove the existing defects in the plant. After the court was satisfied that all the safety and control measures had been complied with by the management in satisfactory manner, it was held that pending consideration of the issue of relocation or shifting of the plant to some other place, the plant should be allowed to be restarted subject to certain stringent conditions and the provisions of the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981 should be strictly observed.
It is submitted that the above approach of the Supreme Court was in consonance with environment protection and sustainable development.
Observation : Regarding the liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, the court observed–
“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non‐delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken.23”
It was further observed –
“The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.”
On the question of the measure of the compensation the court pointed out that it–
“must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect.”
The Supreme Court enunciated a new principle of “absolute liability” which is not subject to any exceptions. The principle of “absolute liability” is justified on the following grounds–
i) If the enterprise is permitted to carry on the hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising out of such activity.
ii) Persons who are harmed as a result of such hazardous or inherently dangerous activity would not be in position to isolate the process of operation from the hazardous operation of the substance or any other related element that caused the harm, and
iii) The enterprise alone has the resource to discover and guard against such hazards and dangers and to provide warning against potential hazards.
In Charan Lal Sahu v. Union of India24 , the Supreme Court while deciding the question of constitutional validity of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, held that the said Act was valid but directed the interim compensation or maintenance to be paid and further suggested for taking “precautionary measures “and for effectively dealing with such industrial disaster in future.
Environmental Hazards : Industries also cause air pollution. The Supreme Court has also directed such industries to either install air pollution control system or face closure25. Industrial accidents involving environmental hazards give rise to judicial concern.
Indian Council for Enviro‐Legal Action v Union of India26 is a monumental judgement on environment protection and sustainable development.
This writ petition filed by an environmentalist organization brings to light the woes of people living in the vicinity of chemical industrial plants in India.
Facts and Issues : In this case, the pollution was caused in Bichhri village, Udaipur, due to chemical industries (HACL) producing H‐acid and sulphuric acid. A petition was filed for an appropriate remedial action for the long‐lasting damage to earth, water, human beings, cattle and the village economy. The petition was directed against the Union of India, Govt. of Rajasthan and R.P.C.B. to compel them to perform their statutory duties enjoined by several Acts on the ground that their failure to carry out their statutory duties is seriously undermining the ‘right to life’ guaranteed by Art. 21 of the Constitution. The Reports of NEERI, the Central team (experts from the Ministry of Environment and Forests, Govt. of India) and R.P.C.B. were called by the Supreme Court and several orders passed on the basis of those Reports.
The Supreme Court held that the contention that the respondents being private corporate bodies and not ‘State’ within the meaning of Article 12, a writ petition under Article 32 would not lie against them, cannot be accepted. If the court finds that the government or authorities concerned have not taken the action required of them and their inaction has affected the right to life of the citizens, it is the duty of the court to intervene and the court can certainly issue the necessary directions to protect the life and liberty of the citizens.
The Supreme Court applied one of the most essential principle of sustainable development i.e. the “Polluter Pay Principle” (PPP), according to which the responsibility for repairing the damage is that
damage is that of the offending industry. Under the “Polluter Pays Principle”, the offending industries were directed to compensate for the losses due to damage and to pay towards the cost of restoration of environmental quality.
Thus, the court directed the closure of all such industries. The court further directed that the Central Government shall determine the amount required to carry out the remedial measures including removal of sludge from the sites of the industries and the same shall be paid by the respondent industries. The villages could claim damages for the loss suffered by them by instituting appropriate suits. In future all chemical industries were to be established after taking into consideration all environmental aspects because the ultimate idea is to integrate and balance the concern for environment with the need for industrialisation and technological progress.
While emphasising on sustainable development the court observed–
“While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation, at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice‐versa, but there should be development while taking due care and ensuring the protection of environment.
From the above observations of the court, it is evident that while dealing with environmental litigations, the court has never hampered the developmental process, rather it has always followed the path which promoted sustainable development and the notion that public has a right to expect certain lands and natural areas to retain their natural resources.
In M.C. Mehta v. Kamal Nath27
(SPAN MOTEL CASE)
A news item appeared in Indian Express stating that a lease was granted by the State Government of riparian forest land for commercial purposes to a private company having a Motel located at the bank of river Beas (the family of Kamal Nath, a former Minister for Environment and Forests, and direct link in the company). The Motel management interfered with the natural flow of river by blocking natural relief/spill channel of the river, ostensibly to save the motel from future floods.
The Supreme Court taking note of the news item and consequent writ petition held that the State government committed a breach of public trust by leasing the ecologically fragile land to the Motel management. The court quashed the lease and prior approval granted by Govt. of India, MoEF.
The Supreme Court observed :
i) The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into law of the land. The doctrine of public trust primarily rests on the principle that certain resources like air, sea, waters and the forests have
such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, should be made freely available to everyone irrespective of the status in life.
ii) The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Though the public trust doctrine under the English Common Law extended only to certain traditional uses viz. navigation, commerce and fishing, the US Courts in recent cases expanded the concept of the public trust doctrine.
iii) Our legal system‐based on English Common Law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running water, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. Thus, the public trust doctrine is a part of the law of the land.
CASE LAW
M.C. Mehta vs. Union of India28
[Ganga Pollution (Tanneries) Case]
Facts : In 1985, M.C. Mehta, an activist advocate, filed a writ petition under Art. 32 of the Constitution. The petition was directed at the Kanpur Municipality’s failure to prevent waste water from polluting the Ganga. The discharge of trade effluents from tanneries at Jajmau near Kanpur, without treating the effluents first into a primary treatment plant has been causing considerable damage.
Sec. 24 of the Water Act, 1974, prohibits the use of any stream or well (the expression “stream” includes rivers) for disposal of polluting matter, etc. Notwithstanding the comprehensive provisions contained in the Act, no effective steps appear to have been taken by the State Board to prevent the discharge of effluents into the river Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provision of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality.
Observations and Decision : The court observed that under the existing law, tanneries, like other industries, are expected to provide treatment of their effluents to different standards depending on whether they are discharged into stream or land. Accordingly, the court issued directions to the tanneries to set up effluent treatment plants within a period of six months.
The court further observed that the closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.
M.C. Mehta vs. Union of India29
[Ganga Pollution (Municipalities) Case]
Observations and Decision : The Supreme Court in this case held that the Nagar Mahapalika of Kanpur has to bear the major responsibilities for the pollution of the river Ganga near Kanpur city.
The petitioner in the present case is not a riparian owner, but he is a person interested in protecting the lives of people who make use of the water flowing in the river Ganga. The nuisance caused by the pollution of Ganga is a public nuisance and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a public interest litigation. The petitioner is entitled to move the court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Board constituted under the Water Act.
Vellore Citizens’ Welfare Forum vs Union of India20 , (Popularly known as T.N. Tanneries Case), is a landmark judgement of the Supreme Court where the principle of sustainable development has been adopted by the court as a balancing concept.
Facts : In this case, certain tanneries in the State of Tamil Nadu, were discharging untreated effluent into agricultural fields, roadsides, waterways and open lands. The untreated effluent was finally discharged in a river which was the main source of water supply to the residents of Vellor. The Supreme Court issued comprehensive directions for maintaining the standards stipulated by the Pollution Control Board.
Observations : The Supreme Court observed that the “Precautionary principle” and the “Polluter Pays principle” are part of the environmental law of the country. These principles are essential features of “Sustainable development”. The “Precautionary principle” in the context of the municipal law means: (i) Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation (ii) where there are threats of serious damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation (iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.
The “Polluter Pays” principle means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable development” and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
The Supreme Court observed : Sustainable development as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists. Some of the salient principles of “Sustainable development”, as deduced from Brundtland Report and other international documents, are‐Inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the
Precautionary Principle, Polluter Pays Principle, Obligation to assist and co‐operate, Eradication of Poverty, and, Financial Assistance to the developing countries.
Decision : The Supreme Court directed the Central Government to constitute an authority under Sec. 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority (headed by a retired judge of the High Court) shall implement the precautionary and polluter pays principles. The authority shall compute the compensation under two heads, namely, for reversing the ecology and for payment to individuals.
Thus, in the end, we can conclude by saying– That there should be a proper balance between the protection of environment and development process. The society shall have to prosper, but not at the cost of the environment and in similar way, the environment shall have to be protected but not at the cost of development of the society.
Judicial activism in the sphere of environment is the need of the hour, and more specially when the Legislature is lagging behind in bridging lacunae in the existing legal mechanism and the administration is still not equipped to meet the challenge. In future too, the courts will have to play an active role in the formulation and effective determination of environmental policy so that elected/branches of Government become accountable to law and public.
An overview of various cases reveals a picture of active judicial interference to enforce the principles of sustainable development and protect environment.
IMPORTANT QUESTIONS
Q.1. Explain the meaning and concept of environment and the problems of Environment Pollution? What are the factors responsible for environmental pollution? Discuss.
Q.2. There is a remarkable shift of law from preventing pollution to protection of environment. Comment.
Q.3. What are the provisions for the protection of environment under the Indian Constitution? How far can the provisions of Indian Penal Code be used for prevention of pollution. Discuss.
Q.4. Discuss the role of Judiciary in Protection of Environment.
Q.5. Discuss the salient features of Stockholm Declaration, 1972.
1. (1983) 1 SC 471.
2. AIR 1987 AP 1971
3. AIR 1985 SC 652
4. AIR 1987 SC 965
5. AIR 1988 SC 1037
6. AIR 1992 SC 514
7. AIR 1985 SC 652
8. AIR 1988 H.Q. 4
9. AIR 1997 SC 734
10. AIR 87 A.P. 171
11. (1977) 3 SCC 422 at 433
12. S.P. Gupta and others v. Union of India, AIR 1982 SC 149 at 192.
13. AIR 1992 SC 541.
14. S.P. Gupta and others v. Union of India, AIR 1992 SC 514 at p. 517.
15. Rural Litigation and Entitlement Kendra v. State of U.P. AIR 1988 SC 81; 87.
16. Vellore Citizen Welfare Forum v Union of India, AIR 1996 SC 2715.
17. L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj. 2
18. M.C. Mehta v. Kamalnath, (1997) 1 SCC 388 at pp. 391‐397.
19. AIR 1988 SC 2187
20. (1997) 2 SCC 267
21. (1988) 9 SCC 660.
22. AIR 1987 SC 965 See also M.C. Mehta VUO 2
AIR 1987 SC 982 and M.C. Mehta v. UOI AIR 1987 SC 1086 This case is popularly known as Oleum Gas Leakage case. 23. M.C. Mehta v. UOI, AIR 1987 SC 1086 at legg.
24. (1990) 1 SCC 613 at 707‐708.
25. M.C. Mehta v. Union of India, 1994 (3) SCC 717.
26. (1996) 3 SCC 212. This case is popularly known as H Acid case.
27. (1997) 1 SCC 388.
28. AIR 1988 SC 1037.