LLB 4th By, kamran zaffar

Kashmir law college

9622817330

(Don’t rely completely on notes)

Environmental Law
Unit - I

I. Origin and Development of Environmental Law.

In the last forty years, International Environmental law has rapidly evolved
simultaneously with the increase in environmental risks. Before the late 19th
Century, there was no appreciation for the idea that ecosystems and other
important natural resources should be made the subject of legal protection.
Before the 1960s, environmental law had no discrete domestic and international
statute of its own. Even in the 1970s, there were only a few multilateral
agreements related to environmental law, and most countries lacked a law
dedicated to the environment.

But with the advent of the 21st-century environment preservation became

integrated with a nation’s overall development and therefore with major thrust
in fields of public health, resources conservation and legal actions against
pollution damage Environmental Law got the initial push. As of now, there are
hundreds of environmental agreements and conventions and every country now
have its environmental statutes. Here in this article, we would be analysing the
evolution of international environmental law and how it came into its present
form, but first, it is important to know why a law dedicated to the environment
is important.

Purpose of Environment Law

Environmental law is a new concept which is completely distinct from past

ideas and seeks to redefine the relationship between humans and nature by
making a heterogeneous system where both the natural ecosystem and material
developments sustain itself without deterring one another.
Environmental Law is the product of a value system that seeks to redefine
mankind’s relationship to nature. The essential idea behind it is to induce
humans to act for the service of the environment they live in, and thus pay their
homage to the Mother Nature. The basic purpose of environmental law is to
change the outlook of people and induce in them a mindset for sustainable
development.

Environmental Laws seeks to build up a relationship between humans and the

natural system they live in. It seeks to reverse a long run disregard of our natural
resources which has led to serious degradation and exploitation of the same. It
was always in our human history that we have exploited our Mother Nature and
its resources and have never given a thought to mitigate this exploitation.

Therefore, Environmental Law is an answer to these environmental

degradations and adverse exploitation. In a nutshell, it could be concurred that
environmental law is necessary because it is only through statutes dedicated to
environmental law that we can reverse the long history of unrestrained material
development that has led to environmental degradation.

Evolution of Environmental Law

The evolution of international environmental law can be studied in three distinct periods: Traditional
Period (1900-1972), Modern Period (1972-1992) and Post-Modern Period (1992-2012). These
periods correspond to the early glimmers of international environmental law when the basic
framework of international environmental law developed and matured. Legal work done during
these periods laid the basis for developing and implementing international environmental law .

Traditional Period (1900-1972)

History of conservation can be traced back to 1669 when Jean-Baptiste Colbert passed
the Ordonnance et forest which can be seen as precursors of environmental law today. Natural
resource management, therefore, has been a subject of international law for over five hundred years
starting with the advent of the Traditional Period which gave to us the early glimmers of
Environmental Law. During this period, it started as a basic element of International Law when
bilateral agreements were entered into between various states to settle matters over shared natural
resources. All of what that has happened during this period was under the ‘principle of
reciprocity’ between states and no specific legislation for environmental law were developed. All of
the agreements that were entered into for resolving environmental problems were dealt with under
the concept of territorial sovereignty. Most frequently used examples of this period are the
arbitration cases of the Bering Sea Fur Seals case, 1893 and the 1957 Lake Lanoux case of 1957. It
was during this period that Green Policies for the conservation of the natural environment began to
make their appearance as treaties between various regimes. Examples of such policies are, Article 22
of the 1856 Bayonne Boundary Treaty between France and Spain for preventing the destruction of
the fisheries in the Bidassoa River which led to a transition in domestic laws in the regulation of
watercourses.
The initial motive for these laws was for utilitarian and self-serving purposes and therefore nothing
much legal character could be given to the laws back then. Some examples of such laws are the
1900 London Convention Designed to Ensure the Conservation of Various Species of Wild Animals in
Africa That Are Useful to Man or Inoffensive and the 1902 Paris Convention to Protect Birds Useful to
Agriculture. It was only in the twentieth century that marked the entry of international
environmental law into conservation ethics for the prevention of global environmental risks. It all
started with President Theodore Roosevelt’s first attempt (although it was later aborted) for
holding the International Conservation Conference at The Hague in 1909. Later the London
Convention Relative to the Preservation of Fauna and Flora in their Natural State of 1933 and the
Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere
in 1940 were breakthroughs for environmental law. The non-governmental International Union for
the Protection of Nature established in 1948 (later known as the International Union for Protection
of Nature and Natural Resources) became an important source for subsequent developments in the
field of International Environmental Law. Later joint initiatives of the United Nations Educational,
Scientific and Cultural Organization (UNESCO), led to the adoption of the 1971 Ramsar Convention
on Wetlands of International Importance Especially as Waterfowl Habitat and the 1972 Paris
Convention for the Protection of the World Cultural and Natural Heritage. All of these events
ultimately led to the establishment of Environmental Law which was sure-footed and was ready to
be developed and crystallised.

Modern Period (1972-1992)

The beginning of ‘modern’ international environmental law is dated to 5 June 1972 which marks the
beginning of the United Nations Conference on the Human Environment in Stockholm. This period
includes many developments that took place up until the 1992 United Nations Conference on
Environment and Development.

It was in 1972 when for the first-time countries across the world came together to identify and
address environmental problems at the United Nations Conference on the Human Environment in
Stockholm. This event has had a lasting impression on the development of international
environmental law. This conference was based upon the central issue of conflict between economic
development and environmental protection and it was this conference where the concept of
Sustainable Development was shaped. The conference was preceded by the Founex Meet in
Switzerland where it was recognized that environmental protection and economic development
should go hand in hand thus laying a foundation for the concept of sustainable development, which
governments confirmed later at the Rio Conference on Environment and Development. At the
Stockholm Conference, the Stockholm Declaration on the Human Environment was adopted which
led to further development of international environmental law. As a result of the Stockholm
Conference, countries established the United Nations Environment Programme (UNEP) in Nairobi,
Kenya which was not established as a United Nations specialized agency.

Some important multilateral agreements associated with the Stockholm Conference, are
the Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other
Matters and the Convention for the Protection of World Cultural and Natural Heritage, in
1972 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) in 1973. These agreements were the early pillars of international environmental law and
together with the UN Conference, set the stage for the developments in international environmental
law.
In the next two decades, international environmental agreements proliferated and more than 1100
international legal instruments that were in one way or the other dedicated to the environment. In
this period, countries became adept at negotiating new agreements in short periods which did not
exceeded 2 months.

The international environmental agreements entered into during this period started a system of
monitoring and reporting specific environmental threats and had its own, separate facility to assist
countries in implementing the agreement with separate protocols for the negotiation of
international agreements, including trans-boundary air pollution ozone climate, etc. The period
between 1972-1992 witnessed changes in the themes and the focus of international environmental
agreements. The scope of agreements also expanded from controlling trans-boundary pollution to
global pollution problems, such as the depletion of the ozone layer, conserving ecosystems etc.

Post Modern Period (1992-2012)

This period begins with the United Nations Conference on Environment and Development and
continues for the next two decades. It begins in June 1992 when countries met in Rio de Janeiro,
Brazil, on the twentieth anniversary of the 1972 Stockholm Conference. The location sent an
important message that environment and development were the concerns of all countries,
regardless of their economic development. It became an important event which lasted deep impact
on future international environmental law and policies. The World Commission on Environment and
Development (Brundtland Commission) created by the United Nations General Assembly, prepared a
report for the Rio Conference, Our Common Future, which made the concept of sustainable
development the basic principle of international environmental law. While every nation accepted
the concept, not all agreed upon the definition of sustainable development. The Rio Conference
produced four important documents for international environmental law: the Rio Declaration on
Environment and Development, which laid the basis for development of new principles of
international environmental law; the U.N. Framework Convention on Climate Change; the
Convention on Biodiversity; and the Agenda 21, which stated a comprehensive list of actions that
States were to take in cases on environmental deterioration. It resulted in the establishment of the
Commission on Sustainable Development, to review progress in implementing Agenda 21.

The years since the Rio Conference have witnessed major developments in international
environmental law and policy. It has become more robust and more comprehensive. It has
developed close links to trade, human rights, and national security. New principles and rules have
emerged and old ones have been redefined. The focus has shifted from exclusive concerns to
international concerns. The developments since the Rio Conference can be grouped as follows:

Linkage of international environmental law with other areas of laws such as economic law, human
rights law, and national security laws.

Rise of actors other than States in shaping international environmental law, like development banks,
private sector actors, public-private partnerships, NGOs etc.

Development of new international principles with an increase in their severity.

Emphasis on implementation of international environmental agreements.

All these developments in different periods reflect a new type of accountability owed by all states
for proper management of environmental resources for the benefit of all people, present and future.

History and Evolution of Environmental Law in India

In India, the concept of Environment Preservation is as old as the nation itself. Since the beginning of
our civilization men and women have constantly strived to protect and preserve the Mother Earth.
This ancient tradition of environment preservation even reflects in our modern-day India. India is the
member of almost all the conventions, declarations, Conferences and Protocols dedicated to the
protection of Environment Law. Some of them are the Stockholm Declaration, United Nation
Environment Program, Rio Declaration, Kyoto Protocol etc. Indian Judiciary and Legislation is striving
to build good legislations backed up by judicial precedent so that a strong foundation for
Environmental Law Jurisprudence could be construed.

The jurisprudence for Indian Environmental Law was first laid down in the case of M.C. Mehta v.
Union of India, wherein the Apex Court held that there needs to be a synthesis of environment and
economic imperative for the greater good of the people. Industrialisation should not mean genocide
but human good. Then, time and again our Indian Judiciary has been implementing the principles of
Environment Law in such a manner that an Indian Jurisprudence could be devised for aiding the
legislators to enact statutes dedicated to Environmental Law as per Indian conditions.

Calcutta High Court in the case of People United for Better Living in Calcutta v. State of West
Bengal, observed that in a developing country there shall have to be developments in harmony with
the environment. An equilibrium must be maintained between the economic growth and
environment such that none of them deters the other. This ruling was in relation to the principle
Sustainable Development which is a part of International Environment Development.

Hon’ble Supreme Court in Narmada Bachao Andolan v. Union of India, discussed the precautionary
principle and held that the principle is to be employed only in cases of pollution when its impact is
uncertain and non-negligible.

In M.C. Mehta v. Union of India &Ors (Calcutta Tanneries Case), the Polluter Pays principle was used
and relocation of industries was ordered followed by compensation of 25% of the cost of land. Those
who did not pay for the cost of land were directed to be closed.

The Apex Court in T.N. GodavarmanThirumalpad (through K.M. Chinnapa) v. Union of India and
Others observed that where a commercial enterprise would be of greater use for the people, the
difficulty of a small number of people has to be bypassed and thus laid down another principle
termed as Doctrine of Proportionality of Risk.

The Apex Court then in M.C. Mehta v. Kamal Nath while considering the public trust doctrine held
that certain common properties are held by the Government in trusteeship for the use of the
general public. These resources being a gift of nature should be made freely available to everyone
and should not be made private property.

All of these regulations aided to the establishment and development of Indian Environmental Law
and established a jurisprudence dedicated to Indian Environmental issues.

Future Prospects for Environmental Laws

Although numerous international environmental laws have been enacted to date, their effective
application is still difficult to achieve. There are many inconsistencies which make its application
impossible in cases of transnational pollution. A major problem with such laws is that it results in
social and economic hardships which make developing nations reluctant to implement them and
therefore international environmental law remains underdeveloped. All these issues can be
addressed through the cooperation of governments with similar environmental policy, through
provisions designed to encourage the adoption of environmental laws by aiding developing nations
financially and technologically.

Despite all these difficulties, international environmental law never stagnated and kept on growing.
Even as of now and for the future there is a great aspiration for this law with the growing field of
environment usage which has expanded even to space.

Conclusion

The environment has now has become an important component of international as well as domestic
laws. Every country now has one or more legislation dedicated to the environment. There are now
hundreds of environmental agreements, which show how our understanding of the environment
and its relation with development has changed. The environment has now received a centre stage in
global politics which is indeed the need of this hour. With this International environmental law will
be oriented for long-term risks and their mitigation through inter-generational and intra-
generational equity. With the coming decade, there will surely be changes and then it would be on
us how to deal with those changes to ensure sustainable development for us and our future
generations.

Meaning and Concepts

Introduction to Environmental law in India

India had an ancient tradition of paying constant attention to protection of the environment. There are
writings galore, to show that in ancient India every individual had to practice the dharmato protect and
worship nature. In India the devices and rules for protecting the environment are discernible from
ancient times.

Environmentalism is not a fixed concept, but is always evolving influenced by its context. This also applies
to Indian environmentalism, which has developed and changed throughout the years. There is a rapid
evolution in the Indian legislations after independence as the need and concern regarding environment
arose. From ancient environmental rules including Buddhism and Jainism to medieval and then from
British era to afterwards and the coming of modern legislations on environmental laws in India, a great
sense of concern has been shown by the legislature and even the Indian judiciary showed a great concern
regarding the environment with its landmark judgments.

Environment
The environment has been defined as that outer physical and biological system in which man and
other organisms live as a whole. Human environment consists of both physical environment and
biological environment. Physical environment covers land, water and air. Biological environment
includes plants, animals and other organisms.

Environment defined under the Environmental Protection Act, 1986, 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, microorganisms and property.

The term environment has been derived from the term environ, which means to surround Thus,
etymologically environment means surrounding conditions, circumstances affecting people life.
Environment includes water, air and land and the inter-relationship which exist among and between
water, air, land and human beings, other living creatures, plants, micro-organisms and property.

It includes the complex physical, chemical and biological factors surrounding an organism or an
ecological community. Such factors act and interact with various species and organisms to affect
their form, growth and survival. Any unfavourable alteration of this environment is called
environmental pollution. Air, water, land, radiation and thermal are the common type of pollution.

Obviously, the Environment comprises all entities, living and non-living, natural or man-made,
external to oneself, and their interrelationships, which provide value, now or perhaps in the future,
to humankind. Environmental concerns relate to their degradation through actions of humans.

The goals of the Environmental policy may be formulated in several ways - to protect human health,
ensure viability of wild life, preservation of historic monuments, stopping further degradation of the
environment etc.

Provision of Environmental Law In India

Apart from international laws, every country has enacted laws regarding environment protection,
pollution control etc. In India, there are several acts for environment protection that says protection
of environment is the duty of government.

Policy and Laws in Medieval India (1638-1800 AD)

To Mughal rulers, forest meant no more than woodlands where they could hunt. The history of
medieval India is dominated by Muslim Rulers where no noteworthy development of environmental
jurisprudence took place except during the rule of Mughal Emperor Akbar. During Akbar’s rule
except rulers others are prohibited from hunting or shikar. But no major initiatives took place during
medieval period to prevent environmental protection and conservation of natural resources as the
rulers were only interested in war, religion propagation and empire building. Barring royal trees
which enjoyed patronage from being cut except upon a fee, there was no restriction on cutting of
other trees, hunting animals, etc. Forests during this period shrank steadily in size.

Laws in British India (1800-1947 AD)

Shore Nuisance (Bombay and Kolaba) Act, 1853 imposed restrictions on the fouling of seawater.

Merchant Shipping Act of 1858 dealt with prevention of sea pollution by oil.

The Fisheries Act, 1897

The Bengal Smoke Nuisance Act of 1905
Bombay Smoke Nuisance Act of 1912
Wild Birds and Animals Protection Act, 1912

Laws after Independence (1947)

The Indian Constitution, as adopted in 1950, did not deal with that the subject of environment or
prevention and control of pollution as such (until 1976 Amendment). The post independent Indian
approach was centered on economic development and poverty alleviation and not on resource
conservation.

The year 1972 was a landmark in the field of environment, when United Nations Conference on the
Human Environment was held at Stockholm (Sweden) from 5th to 16th June, in which "Declaration
on the Human Environment" was adopted. This may be considered as the beginning of environment
movement in the world.

The Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the
human environment at the international level. The preamble of it states, 'the need for a common
outlook and for common principles to inspire and guide the peoples of the world in the preservation
and enhancement of the human environment.[4]

As a consequence of this Declaration, the States were required to adopt legislative measures to
protect and improve the environment. Accordingly, Indian Parliament inserted two Articles, i.e., 48A
and 51A in the Constitution of India in 1976.[5]

In India a separate ministry namely The Department of Environment was established in 1980 to
ensure a healthy environment for the country.

The main acts for environment protection in India are as follows:-

1. The Forest Conservation Act, 1980

2. The Prevention of Air and Water Pollution, 1974, 1981 (The Central Pollution Control Board) (CPCB)
was constituted under this act.
3. The Air Prevention and Control of Pollution, 1981.
4. The Atomic Energy Act. 1982.
5. The Environmental Protection Act, 1986. (It came into force soon after the Bhopal Gas Tragedy)
6. The Environmental Conservation Act. 1989.
7. The National Environmental Tribunal, 1995.
8. National Environmental Appellate Authority Act, 1997.
9. National Environment Management Act (NEMA), 1998
10. Handling and Management of Hazardous Waste Rule in 1989.
11. The Public Liability Insurance Act (Rules and Amendment), 1992.
12. The Biomedical Waste Management and Handling Rules, 1998.
13. The Environment (Siting for Industrial Projects) Rules, 1999.
14. The Municipal Solid Waste (Management and Handling) Rules, 2000.
15. The Ozone Depleting Substance (Regulation and Control) Rules, 2000.
16. The Biological Diversity Act 2002.

Environment And The Indian Constitution

The Indian Constitution is among the few in the world that contains specific provisions on
environmental protection.

Laws made by national, provincial and local government add to the rights and responsibilities that
are part of the constitution and the common law. These laws also called legislations must comply
with the constitution but they can amend change the common hand.

Protection of Life and Personal Liberty is embodied in Article 21. It states, person shall be deprived
of his life or personal liberty except according to procedure established by law.
The Indian Constitution guarantees the right to equality to all persons without any discrimination.
This indicates that any action of the State relating to environment must not infringe upon the right
to equality as mentioned in the Article 14 of the Constitution. The Stockholm Declaration, 1972, also
recognized this principle of equality in environmental management and it called up all the world’s
nations to abide by this principle.
In the Constitution of India it is clearly stated that it is the duty of the state to protect and improve
the environment and to safeguard the forests and wildlife of the country. It imposes a duty on every
citizen to protect and improve the natural environment including forests, lakes, rivers, and wildlife.

Let us further examine the provisions in the Indian Constitution for the protection of environment.
The 42nd amendment to the constitution was brought about in the year 1974 makes it the
responsibility of the state government to protect and improve the environment and to safeguard the
forests and wildlife of the country. The latter, under fundamental duties, makes it the fundamental
duty of every citizen to protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures.

The Art 47 provides that is the duty of the state, to raise the level of nutrition and the standard of
living and to improve public health, the state shall endeavour to bring about prohibition of the
consumption except for medicinal purposes intoxicating drinks and of drugs which are injurious to
health. Art. 48A provides that the state shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.

Art. 51A, included in the Constitution by the 42nd amendment Act, 1976 has the provisions as
fundamental duties, says that “It shall be the 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 creatures and to develop the scientific temper, humanism and the other spirit of inquiry and
reform, and to safeguard public property and to abjure violence.

One of the most innovative parts of the Constitution is that the Writ Jurisdiction is conferred on the
Supreme Court under Article 32 and on all the High Courts under Article 226. Under these provisions,
the courts have the power to issue any direction or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo- warranto and certiorari, whichever is appropriate. This
has paved way for one of the most effective and dynamic mechanisms for the protection of
environment, that is, Public Interest Litigations.

Role of Panchayat and Municipalities

The Constitution (Seventy-third Amendment) Act 1992 and the Constitution (Seventy -fourth
Amendment) Act 1992 have given a Constitutional status to the panchayats and the Municipalities
respectively. Article 243-B provides or the establishment of intermediate and district levels. Article
243-G authorises the legislature of State to endow the Panchayats with such powers and authority
as may be necessary to enable them to function as institution of self-government.

The Eleventh Schedule along with other matters contains following maters which are directly or
indirectly related to environment like, agriculture, soil conservation, water management and
watershed development; fisheries; social forestry and farm forestry; minor forest produce; drinking
water; health and sanitation; and maintenance of community assets.

The matters which are related to environment in the twelfth Schedule may be enumerated as
follows:
Urban planning including town planning regulation of land use water supply; public health,
sanitation, conservancy and solid waste management, urban forestry, protection of the environment
and promotion of ecological aspects; provision of urban amenities such as park grounds; cremation
grounds and electric crematoriums; prevention of cruelty to animals’ regulation slaughter houses
and tanneries.

Judicial Contribution
The right of a person to pollution free environment is a part of basic jurisprudence of the land.
Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The
Supreme Court has interpreted the right to life and personal liberty to include the right to
wholesome environment .The Court through its various judgements[12]has held that the mandate of
right to life includes right to clean environment, drinking-water and pollution-free atmosphere.

It was Mr. M.C Mehta who revived the concept of environmental jurisprudence in India through PIL.
Others too had their silent but noteworthy roles to play. Some of the landmark judgements having
fair share in development of the environmental jurisprudence in India are:

Narmada Bachao v/s Union of India

Way back in 1946, the then government of the Central Provinces and Berar and the then
government of Bombay requested the Central Waterways, Irrigation and Navigation Commission to
take up investigation on the Narmada river system for basin wise development of the river with
flood control, irrigation, power and extension of Navigation as the objectives in view. The matter was
referred to a tribunal in 1968 constituted under the Inter-State Water Disputes Act, 1956. Based on
the agreement between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and Gujarat]
the tribunal declared is award on 16thAugust 1978. In order to meet the financial obligation,
consultations started in 1978 with the World Bank for obtaining a loan. In May 1985 the loan was
sanctioned, and in 1987 the Ministry of Environment and Forest accorded Environmental Clearance
subject to certain conditions.

The Supreme Court observed that the Sardar Sarovar Project would make a positive impact on the
preservation of environment. The project has been long awaited by the people of Gujarat to whom
water will be available to the drought prone and arid parts, this would help in effectively arresting
ecological degradation which was returning the make these areas inhabitable due to salinity ingress,
advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing
green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to
these areas will lead to sustainable agriculture and spread of green cover.

There will also be improvement of fodder availability, which will reduce pressure on bio-diversity
and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution
which would otherwise take place by thermal general power of similar capacity. Following the above
analysis, the Court thought it unfit to interfere with the construction of the dam, as its advantages
over took its disadvantages. The construction of the dam was allowed subject to certain conditions.
Such interpretations of Article 21 by the Supreme Court have over the years become the basis of
environmental jurisprudence, and have been instrumental in helping in the name of protection of
India’s environment. Also, in addition to this there now exists a number of laws relating to
environment, enacted over the last few decades.

Taj Mahal Case

In Taj Mahal's case, the Supreme Court issued directions that coal and coke based industries in Taj
Trapezium (TTZ) which were damaging Taj should either change over to natural gas or to be
relocated outside TTZ. The court was conscious that environmental changes are the inevitable
consequences of industrial development in our country, but at the same time the quality of
environment cannot be permitted to be damaged by polluting the air, water and land to such an
extent that it becomes a health hazard for the residents of the area. Showing deep concern to the
environment, the Court observed that every citizen has a right to fresh air and to live in pollution-
free environment.

Again the Supreme Court directed to protect the plants planted around Taj by the Forest
Department as under:
The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that water is
supplied to the plants... The Union Government is directed to release the funds immediately without
waiting for receipt of the proposal from the U.P. Government on the basis of the copy of the report.
Funding may be subsequently settled with the U.P. Government, but in any set of circumstances for
want of funds the officer is directed to see that plants do not wither away.

The apex Court gave various directions including banning the use of coal and coke and directing the
industries to switch over to Compressed Natural Gas (CNG).

Ganges Pollution Case:

The Supreme Court of India reacting to the public interest litigations has passed several judgments
and a number of Orders against polluting industries numbering more than fifty thousand in the
Ganga basin. As a result of these directions millions of people have been saved from the effects of
air and water pollution in Ganga basin covering 8 states in India.

Kamal Nath’s Case

The irony of this case is that a Public Interest Litigation was filed against the family members of
Kamal Nath, the Minister of Environment and Forests, Govt. of India. The family members of the
Minister own the Span motel in the State of Himachal Pradesh. They diverted the Course of River
Beas to beautify the motel. The Supreme Court of India had directed the owners of the Motel to
hand over the forest land to the Govt. of Himachal Pradesh and further order the removal of all sorts
of encroachment spending the money from their own pocket.

In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (Popularly known as Oleum Gas Leak Case The
Supreme Court treated the right to live in pollution free environment as a part of fundamental right
to life under Art.21 of the Constitution. The Supreme Court held that where an enterprise is engaged
in a hazardous or inherently dangerous activity and harm results to any one on account of an
accident in the operation of such hazardous and inherently dangerous activity resulting in the escape
of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected
by the accident and such a liability is not subject to any exception. 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 negligence on its part. Absolute
liability is one tort where fault need not be established. It is no-fault liability.

Further, the A.P. High Court in T. Damodar Rao vs. S.O., Municipal Corporation, Hyderabad, (AIR
1987 A.P. 171)laid down that right to live in healthy environment was specially declared to be part of
Art.21 to the Constitution.

Conclusion
In India, the concern for environmental protection has not only been raised to the status of
fundamental law of the land, but it is also wedded with human rights approach and it is now well
established that, it is the basic human right of every individual to live in pollution free environment
with full human dignity.

It is high time that the general public, public entities, state and central government realize the
damage, which our developmental process has made to the living environment.

For the success of the local government laws relating to the environment it is essential to create a
sense of civic consciousness and public hygiene in the use of municipal services like roads, public
places, drainage etc. Strict enforcement of the provisions of law also is needed. Law is a strong
medium to compel the citizens to observe cleanliness and thereby to combat pollution.
Environmental protection laws in India need a new orientation in the modern context.

As Paul Bigelow Sears said, How far must suffering and misery go before we see that even in the day
of vast cities and powerful machines, the good earth is our mother and that if we destroy her, we
destroy ourselves.

Constitutional Provisions – Articles 14,19(1)(g),48-A, 51A, Art. 21

[Right to Wholesome Environment – Evolution and Application] and other provisions.

INTRODUCTION

The history of legislative started with Indian Penal Code, 1860. Section 268 defined what is public
nuisance. Abatement of public nuisance is also a subject of Section 133 to 144 of I.P.C. These are
only prohibitive provisions. Sections 269 to 278 of the Indian Penal Code are penal provisions which
means that a person guilty of violating any of the provisions is liable to prosecution and punishment.
Legislative fight against pollution continued in independent India. Now there is a host of legislation
in India aimed at protecting the environment from pollution and maintaining the ecological balance.
The Environment (Protection) Act, 1986 is one major Act for environmental protection. The
Government of India has launched various programmes and made use of audio-visual media to
educate the people and arouse their consciousness for the protection of environment. In February
1971, the University Grants Commission (India), in collaboration with other organizations, launched
a symposium on the development of environmental studies in the Indian Universities. The consensus
that emerged at the symposium was that ecology and environmental issues should form part of the
courses of study at all levels. Further, with the object of generating an awareness of the need to
maintain ecological balance. In order to keep the environment pure and to obviate the hazards of
pollution and ecological imbalance, the Department of Laws, Punjab University, Chandigarh
organised a three-day National Seminar in 1984 on “Law Towards Environmental Protection” Fifty-
five delegates from all over India participated in the seminar. It claimed:

(i) It is fundamental human right to live in an unpolluted environment.

(ii) It is fundamental duty of every individual to maintain purity of environment. Soon after the
Stockholm Conference, many Acts were introduced i.e. Wildlife Act, 1972; Water Act, 1974; Air Act,
1981 etc. Within five years of Stockholm Declaration, the Constitution of India was amended to
include Protection and Improvement of Environment as constitutional mandate. The protection and
improvement of environment is now a fundamental duty under Constitution Act of 1976. Govt., of
India has set up a National Committee on Environmental Planning and Coordination. Government of
India’s programme for environment included the programme for cleaning the rivers including Ganga
and Yamuna. Prime Minister, Sh. Rajiv Gandhi constituted Central Ganga Authority for the purpose
of pollution control of Ganga. The enactment of Environment (Protection) Act, 1986 was the
immediate off-shoot, of this programme. The Supreme Court (writ petition (Civil) No. 860 of 1991)
has directed the University Grants Commission to prescribe a course on ‘Man and Environment’. In
the light of this directive, the UGC issued a circular to various universities to introduce the course on
‘Environmental Education’. The main attention in the education on environment is as below:

(i) Over-population and the ways to check its rapid growth.

(ii) Afforestation as a preventive to soil erosion and water pollution

(iii) Methods to prevent air pollution, insisting on smokeless cooking

(iv) Discipline in playing radio and television sets and a ban on use of loudspeaker.

(v) Elementary knowledge of the scientific and philosophical basis of man and the environment

(vi) Rules regarding disposal of household waste; and

(vii) General principles of sanitation Environment and Constitution of India: The 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 environment protection
under the chapters of Directive Principles of State Policy and Fundamental Duties. The absence of a
specific provision in the Constitution recognizing the fundamental right to clean and wholesome
environment has been set off by judicial activism in the recent times. Articles 48-A and 51-A. Clause
(g): Initially, the Constitution of India had no direct provision for environmental protection. Global
consciousness for the protection of environment in the seventies, Stockholm Conference and
increasing awareness of the environmental crisis prompted the Indian Government to enact 42nd
Amendment to the Constitution in 1976. The Constitution was amended to introduce direct
provisions for protection of environment. This 42nd Amendment added Article 48-A to the Directive
Principles of State Policy. Article49-A: The Article states: “The State shall endeavour to protect and
improve the environment and to safeguard the forests and wildlife of the country.” The said
amendment imposed a responsibility on every citizen in the form of Fundamental Duty. Article 51-A,
Clause (g): Article 51-A (g) which deals with Fundamental Duties of the citizens states: “It shall be the
duty of every citizen of India to protect and improve the natural environment including forests,
lakes, rivers and wildlife and to have compassion for living creatures.” Thus, protection and
improvement of natural environment is the duty of the State (Article 48-A) and every citizen (Article
51- A (g)). Article 253: Article 253 states that ‘Parliament has power to make any law for the whole
or any part of the country for implementing any treaty, agreement or convention with any other
country. In simple words this Article suggests that in the wake of Stockholm Conference of 1972,
Parliament has the power to legislate on all matters linked to the preservation of natural
environment. Parliament’s use of Article 253 to enact Air Act and Environment Act confirms this
view. These Acts were enacted to implement the decisions reached at Stockholm Conference.
Environment and Citizens: The Constitution of India has made a double provision:

(i) A directive to the State for protection and improvement of environment.

(ii) Imposing on every citizen in the form of fundamental duty to help in the preservation of natural
environment. This is the testimony of Government’s awareness of a problem of worldwide concern.
Since protection of environment is now a fundamental duty of every citizen, it is natural that every
individual should do it as personal obligation, merely by regulating the mode of his natural life. The
citizen has simply to develop a habitual love for pollution. The Constitutional provisions 1. Article
48(A) 2. Article 21 3. Article 253 4. Article 51(A) 5. Article 19(1)(g) 6. Article 51 7. Article 14. Article 14

PROTECTION OF THE ENVIRONMENT 1

The Government and the Contractor recognize that Petroleum Operations will cause some impact
on the environment in the Contract Area. Accordingly, in performance of the Contract, the
Contractor shall conduct its Petroleum Operations with due regard to concerns with respect to
protection of the environment and conservation of natural resources and shall in particular;

(a) employ modem oilfield and petroleum industry practices and standards including advanced
techniques, practices and methods of operation for the prevention of Environmental Damage in
conducting its Petroleum Operations;

(b) take necessary and adequate steps to:

(i) prevent Environmental Damage and, where some adverse impact on the environment is
unavoidable, to minimize such damage and the consequential effects thereof on property and
people;

(ii) ensure adequate compensation for injury to persons or damage to property caused by the effect
of Petroleum Operations; and

(c) comply with the requirements of applicable laws and the reasonable requirements of the
Government from time to time. If the Contractor fails to comply with the provisions of paragraph (b)
(i) of Article 14.1 or contravenes any relevant law, and such failure or contravention results in any
Environmental Damage, the Contractor shall forthwith take all necessary and reasonable measures
to remedy the failure and the effects thereof.
 If the Government in accordance with the laws has good reason to believe that any works or
installations erected by the Contractor or any operations conducted by the Contractor are
endangering or may endanger persons or any property of any person, or are causing or may cause
pollution, or are harming or may harm fauna or flora or the environment to a degree which the
Government deems unacceptable, the Government may require the Contractor to take remedial
measures within such reasonable period as may be determined by the Government and to repair
any damage to the environment. If the Government deems it necessary, it may also require the
Contractor to discontinue Petroleum Operations in whole or in part until the Contractor has taken
such remedial measures or has repaired any damage caused. The measures and methods to be used
by the Contractor for the purpose of complying with the terns of paragraph (b)(i) of Article 14.1 shall
be determined in timely consultation with the Government upon the commencement of Petroleum
Operations or whenever there is a significant change in the scope or method of conducting
Petroleum Operations and shall take into account the international standards applicable in similar
circumstances and the relevant environmental impact study carried out in accordance with Article

The Contractor shall notify the Government, in writing, of the measures and methods finally
determined by the Contractor and shall cause such measures and methods to be reviewed from time
to time in the light of prevailing circumstances. The Contractor shall cause a person or persons with
special knowledge on environmental matters, to carry out two environmental impact studies in
order:

(a) to determine at the time of the studies the prevailing situation relating to the environment,
human beings and local communities, the flora and fauna in the Contract Area and in the adjoining
or neighbouring areas; and

(b) to establish the likely effect on the environment, human beings and local communities, the flora
and fauna in the Contract Area and in the adjoining or neighbouring areas in consequence of the
relevant phase of Petroleum Operations to be conducted under this Contract, and to submit, for
consideration by the Parties, methods and measures contemplated in Article 14.4 for minimizing
Environmental Damage and carrying out Site Restoration activities. The first of the aforementioned
studies shall be carried out in two parts, namely, a preliminary part which must be concluded before
commencement of any field work relating to a seismographic or other survey, and a final part
relating to drilling in the Exploration Period. The part of the study relating to drilling operations in
the Exploration Period shall be approved by Government before the commencement of such drilling
operations, it being understood that such approval shall not be unreasonably withheld. The second
of the aforementioned studies shall be completed before commencement of Development
Operations and shall be submitted by the Contractor as part of the Development Plan, with specific
approval of Government being obtained before commencement of Development Operations, it
being understood that such approval shall not be unreasonably withheld. The studies mentioned in
Article 14.5 above shall contain proposed environmental guidelines to be followed in order to
minimize Environmental Damage and shall include, but not be limited to, the following, to the extent
appropriate to the respective study taking into account the phase of operations to which the study
relates

(a) proposed access cutting; (I) blowout prevention plan

(b) clearing and timber salvage; ( m) flaring during completion and testing of Gas and OilWell

(c) wildlife and habitat protection; (n) abandonment of Wells

(d) fuel storage and handling: (o) rig dismantling and site completion
(e) use of explosives; (p) reclamation for abandonment

(f) camps and staging; (q) noise control

(g) liquid and solid waste disposal; (r) debris disposal; and

(h) cultural and archaeological sites; (s) protection of natural drainage and water flow

(i) selection of drilling sites; (k) protection of freshwater horizons;

(j) terrain stabilization;

Government shall convey its decision regarding any proposal for environmental clearances
submitted by the Contractor pursuant to the provisions of this Article or Contract or required under
any laws of India within one hundred and twenty (120) days from the date of submission of
application by Contractor seeking such clearance. My clarifications/additional information required
by the Government shall be asked by it within sixty (60) days from the date of submission of the
application by Contractor. The final decision by the Government shall be conveyed within sixty (60)
days from the receipt of such clarifications/additional information from the Contractor. In case
Government fails to convey any decision to the Contractor, such application for the clearance by the
Contractor shall be deemed to have been approved by the Government.

The Contractor shall ensure that:

(a) Petroleum Operations are conducted in an environmentally acceptable and safe manner
consistent with modern oil field and petroleum industry practices and that such Petroleum
Operations are properly monitored;

(b) the pertinent completed environmental impact studies are made available to its employees and
to its contractors and Subcontractors to develop adequate and proper awareness of the measures
and methods of environmental protection to be used in carrying out the Petroleum Operations; and

(c) the contracts entered into between the Contractor and its contractors and Subcontractors
relating to its Petroleum Operations shall include the provisions stipulated herein and any
established measures and methods for the implementation of the Contractor’s obligations in
relation to (lie environment under this Contract. The Contractor shall, prior to conducting any drilling
activities, prepare and submit for review by the Government contingency plans for dealing with Oil
spills, fires, accidents and emergencies, designed to achieve rapid and effective emergency response.
The plans referred to above shall be discussed with the Government and concerns expressed shall be
taken into account. In the event of an emergency, accident, Oil spill or fire arising from Petroleum
Operations affecting the environment, the Contractor shall forthwith notify the Government and
shall promptly implement the relevant contingency plan and perform such Site Restoration as may
be necessary in accordance with modem oilfield and petroleum industry practices. In the event of
any other emergency or accident arising from the Petroleum Operations affecting the environment,
the Contractor shall take such action as may be prudent and necessary in accordance with modem
oil field and petroleum industry practices in such circumstances. In the event that the Contractor
fails to comply with any of the terms contained in Article 14.7 within a period specified by the
Government, the Government, after giving the Contractor reasonable notice in the circumstances,
may take any action which may be necessary to ensure compliance with such terms and to recover
from the Contractor, immediately after having taken such action, all costs and expenditures incurred
in connection with such action together with such interest as may be determined in accordance with
Section 1.7 of Appendix C of this Contract. On expiry or termination of this Contract or
relinquishment of part of the Contract Area, the Contractor shall:

(a) subject to Article 27, remove all equipment and installations from the relinquished area or former
Contract Area in a manner agreed with the Government pursuant to an abandonment plan; and

(b) perform all necessary Site Restoration in accordance with modern oilfield and petroleum industry
practices and take all other action necessary to prevent hazards to human life or to the property of
others or the environment. The Contractor shall prepare a proposal for the restoration of site
including abandonment plan and requirement of finds for this and any annual contribution in
accordance with the scheme framed by Government to the Site Restoration find. This will be
submitted along with the annual Budget for the consideration and approval of the Management
Committee. Subject to Section 3.2 of Accounting Procedure, any Site Restoration fund scheme
formulated by Government and subject to provisions of this Contract, any and all costs incurred by
Contractor pursuant to this Article shall be cost recoverable including but not limited to sinking
funds established for abandonment and restoration of Contract Area. In this Article, a reference to
Government includes the State Government. Where the Contract Area is partly located in areas
forming part of certain national parks, sanctuaries, mangroves, wetlands of national importance,
biosphere reserves and other biologically sensitive areas passage through these areas shall generally
not be permitted. However, if there is no passage, other than through these areas to reach a
particular point beyond these areas, permission of the appropriate authorities shall be obtained.
The obligations and liability of the Contractor for the environment hereunder shall be limited to
damage to the environment which: (a) occurs after the Effective Date; and results from an act or
omission of the Contractor.

KAMAL NATH CASE: In the State of Himachal Pradesh, Span motel, owned by the family members of
Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river
Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the
management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and
remove all sorts of encroachments. The Court delivered a land mark judgment and established
principle of exemplary damages for the first time in India. The Court said that polluter must pay to
reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span
motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and
Public Trust Doctrine. Protecting the environment OLEUM GAS LEAK CASE, 1986 M C MEHTA, who
was single-handedly responsible for making environmental degradation a part of public discourse,
says it is vital that PILs have no ulterior motive “GAS HAS leaked. The gas is travelling. I am worried
about your lordship’s life”. Environmental lawyer Mahesh Chander Mehta relives what he told the
Chief Justice of India P.N. Bhagwati on December 4th, 1985. Oleum gas had just leaked from the
Shriram Chlorine plant in Najafgarh, and Delhi had panicked. By a strange coincidence, M.C. Mehta
had filed a public interest litigation against the Chlorine plant a month earlier (before the gas leak),
and was scheduled to argue another case before the Chief Justice of India on December 4th. When
the matter came up, Mehta referred to the Oleum gas that had leaked just three hours earlier. “The
gas leaked at 11 am; the case was listed and heard at 2 pm; the court immediately issued a notice”
gushes Mehta. “No case has been heard this quickly”. Nor perhaps judged so decisively. In siding
with Mehta, the Supreme Court punished the company heavily; the entire complex eventually shut
down. More far reaching, the Supreme Court created the `absolute liability principle’ — companies
engaged in inherently hazardous activities had absolutely no excuse when an accident occurred.
JUDGMENT The court held that any enterprise that is engaged in an inherently dangerous activity is
`absolutely’ liable to compensate all those affected by an accident. They key feature of the judgment
was the principle of `absolute liability’, in which no exceptions (such as an `act of God’) are brooked.
IMPACT The case took place soon after the Bhopal Gas Tragedy and was keenly watched as an
instance of how the courts would deal with companies responsible for environmental disasters.
Unfortunately, the complex court litigation around the Bhopal Gas Tragedy was an example of what
not to do in such cases. Article 19(1)(g) (g) to practice any profession, or to carry on any occupation,
trade or business. Khoday Distilleries Ltd vs State of Karnataka on 19 October, 1994 Article 19(1)(g)
read with Article 19(6) spells out a fundamental right of the citizens to practise any profession or to
carry on any occupation, trade or business so long as it is not prohibited or is within the framework
of the regulation, if any, if such prohibition or regulation has been imposed by the State by enacting
a law in the interests of the general public. It cannot be disputed that certain professions,
occupations, trades or businesses which are not in the interests of the general public may be
completely prohibited while others may be permitted with reasonable restrictions on them. For the
same purpose, viz., to subserve the interests of general public, the reasonable restrictions on the
carrying on of any profession, occupation, trade, etc., may provide that such trade, business etc.,
may be carried on exclusively by the State or by a Corporation owned or controlled by it. The right
conferred upon the citizens under Article 19(1)(g) is thus subject to the complete or partial
prohibition or to regulation, by the State. However, under the provisions of Article 19(6) the
prohibition, partial or complete, or the regulation, has to be in the interests of the general public.
The right given by this article to freely carry on trade, commerce and intercourse throughout the
territory of India is undisputedly subject to the same restrictions as is the right under Article19(1)(g).
Apart from the restrictions placed on the right under Article 301, by the provisions of Articles 19(6),
47, 302 and 303, the provisions of Article 304 also place such restrictions on the said right. So do the
provisions of Article 305, so far as they protect existing laws and laws creating State monopolies. The
provisions of the aforesaid articles, so far as they are relevant for our purpose, read together,
therefore, make the position clear that the right conferred by Article19(1)(g) is not absolute. It is
subject to restrictions imposed by the other provisions of the Constitution. Those provisions are
contained in Articles 19(6), 47, 302, 303, 304 and 305. ARTICLE 21 Article 21 of the constitution of
India provides for the right to life and personal liberty. It states that “no person shall be deprived of
his life or personal liberty except according to procedure established by law.”In Rural Litigation and
Entitlement Kendra v State of UP, also known as the Dehradun quarrying case, the Supreme Court of
India has held that pollution caused by quarries adversely affects the health and safety of people and
hence, the same should be stopped as being violative of Article [Link] this case, the Supreme Court
for the first time held that the right to wholesome environment is a part of right to life and personal
liberty guaranteed under Article 21 of the Constitution. Further, in the case of Subhash Kumar v
State of Bihar, again the apex court held that the right to get pollution free water and air is a
fundamental right under Article 21. Following this decision, the right to pollution free environment
was incorporated under the head of right to life and all the law courts within the Indian territory
were bound to follow the same. This laid down the foundation of environmental litigation in India.
Similarly, public health and ecology3 were held to be the priorities under Article 21 and the
constitution of a green bench was also ordered by the Supreme Court. In the case of Ratlam
Muncipality v Vardicharan, where the problem of pollution was due to private polluters and
haphazard town planning, it was held by the Supreme Court that pollution free environment is an
integral part of right to life under Article 21. Directive Principles of State Policy Article 48(A) 48A.
Protection and improvement of environment and safeguarding 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. Sher Singh vs State Of Hp on 6 February, 2014 The citizens of the country have a
fundamental right to a wholesome, clean and decent environment. The Constitution of India, in
terms of Article 48A, mandates that the State is under a Constitutional obligation to protect and
improve the environment and to safeguard the forest and wild life in the country. By 42nd
Amendment to the Constitution, the Parliament, with an object of sensitizing the citizens of their
duty, incorporated Article 51A in the Constitution, inter alia, requiring a citizen to protect and
improve the natural environment including the forests, lakes, rivers and wild life and to have a
compassion for living creatures. The legislative intent and spirit under Articles 48A and 51A(g) of the
Constitution find their place in the definition of 'environment' under the Environment (Protection)
Act, 1986 (for short the 'Act of 1986'). The legislature enacted various laws like the Air (Prevention
and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974 and the
Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, the Indian Forest Act, 1927 and
the Biological Diversity Act, 2002 and other legislations with the primary object of giving wide
dimensions to the laws relating to protection and improvement of environment. It is true that Part III
of the Constitution relating to Fundamental Rights does not specifically devote any Article to the
Environment or protection thereof per se. However, with the development of law and
pronouncement of judgments by the Supreme Court of India, Article 21 of the Constitution has been
expanded to take within its ambit the right to a clean and decent environment. Not only this, there is
still a greater obligation upon the Centre, State and the Shrine Board in terms of Article 48A of the
Constitution where it is required to protect and improve the environment. Article 25(2) of the UDHR
ensures right to standard of adequate living for health and well-being of an individual including
housing and medical care and the right to security in the event of sickness, disability etc. The
expression 'life' enshrined in Article 21 of the Constitution does not connote mere animal existence
or continued drudgery through life. It has a much wider meaning which includes right to livelihood,
better standard of living, hygienic conditions in the workplace and leisure. The right to life with
human dignity encompasses within its fold, some of the finer facets of human civilization which
makes life worth living. The expanded connotation of life would mean the tradition and cultural
heritage of the persons concerned. In the case of Consumer Education & Research Centre (supra),
the Court discussing the case of C.E.S.C. Ltd. v. Subhash Chandra Bose (1992) 1 SCC 441) stated with
approval that in that case the Court had considered the gamut of operational efficacy of human
rights and constitutional rights, the right to medical aid and health and held the right to social justice
as a fundamental right. The Court further stated that the facilities for medical care and health to
prevent sickness, ensure stable manpower for economic development and generate devotion to
duty and dedication to give the workers' best performance, physically as well as mentally. The Court
particularly, while referring to the workmen made reference to Articles 21, 39(e), 41, 43 and 48-A of
the Constitution of India to substantiate that social security, just and humane conditions of work and
leisure to workmen are part of his meaningful right to life. Small Hydro Power Developers' ... vs
Transmission Corporation of A.P. ... on 8 May, 2008 The said decision itself is an authority for the
proposition that what is granted can be withdrawn by the Government except in the case where the
doctrine of promissory estoppel applies. The said decision is also an authority for the proposition
that the promissory estoppel operates on equity and public interest. Thus, the State has discretion
to alter its policy. The courts cannot interfere with the policy decision unless it is found that the
decision to change the policy is arbitrary, unreasonable and unfair. In the instant case, the State
Government has not changed or withdrawn its policy of incentivising the generation through
renewable sources of energy. The policy directives contained in GOMs are also not inconsistent with
the expressed or implied provisions of any statute. Rather the policy is in conformity with the
preamble to the Electricity Act, 2003 and Article 48A of the Constitution. As seen from above the
thrust of the National Electricity Policy is upon the use of nonconventional sources of energy to
augment generation and for production of green energy. In fact the electricity policy as also the
MNES policy, the preamble to the Electricity Act, 2003 and Section 61(h) thereof and GOMS 93 are in
tune with the provisions of Article 48A and 51A (g) of the Constitution and treaties, conventions and
protocols on the issues relating to environment. In order to support conservation of environment,
Constitution was amended by 42nd Amendment Act, 1976. By virtue of the amendment, Articles 48A
and Article 51A(g) were inserted in the Constitution. Article 48A, interalia, provides that the State
shall endeavour to protect and improve the environment. Similarly Article 51A(g), inter alia, casts a
duty on every citizen of India to protect and improve the natural environment. Articles 48A, Article
51 A(g), the Preamble to the Electricity Act, National Electricity Policy, MNES policy and GOMS 93
reflect the concern for ecology. This concern stems from the ill effects of pollution and global
warming. Since the environment needs to be protected, adequate and pre-empting measures are
required to be taken to incentivise the generation of power through renewable sources of energy.
But in case the original PPAs are re-opened for fixing higher wheeling charges than what is provided
in the [Link]. No. 93., there is bound to be a set back to the generation of power through
renewable sources of energy. The hike in the wheeling charges of power generated by plants based
on renewable sources of energy does not serve the purpose of promotion of power generation
through non- conventional sources. Setting up of power plant requires heavy investment and it has a
long gestation period. It is also well known that till the technologies are improved, the cost of
production of power through renewable sources of energy could be higher than the production of
power through conventional sources of energy. The impugned increase in wheeling charges of
energy produced by renewable sources is against the preamble and Sections 61(h) of the Electricity
Act, the National Electricity Policy, GOMs 93 & 112 of the Government of Andhra Pradesh, MNES
policy and thrust of Article 48A of the Constitution. In Chhattisgarh Biomass Energy Developers
Association and Ors. v. Chhattisgarh S.E.R.C. and Ors. 2007 APTEL 711, it was observed that where
Power Purchase Agreements between distribution licensees and the generating companies utilizing
renewable sources of energy are in conformity with MNES guidelines or various policy guidelines,
the agreements are not to be tinkered with. The Commission has not considered the impact of the
aforesaid decisions, the preamble and Section 61(h) of the Electricity Act, 2003, the National
Electricity Policy, MNES guidelines, Article 48A and 51A(g) of the Constitution and the aspect relating
to protection of environment, which has been the subject matter of various treaties and
conventions. Article 51 Promotion of international peace and security

The State shall endeavour to

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised peoples
with one another; and encourage settlement of international disputes by arbitration PART IVA
FUNDAMENTAL DUTIES. State of Gujarat vs Mirzapur Moti Kureshi Kassab on 26 October, 2005 By
enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects
sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and
48A is honoured as a fundamental duty of every citizen. The Parliament availed the opportunity
provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of
objects contained in Article 48 and 48-A. While Article 48-A speaks of "environment", Article 51-A(g)
employs the expression "the natural environment" and includes therein "forests, lakes, rivers and
wild life". While Article 48 provides for "cows and calves and other milch and draught cattle", Article
51-A(g) enjoins it as a fundamental duty of every citizen "to have compassion for living creatures",
which in its wider fold embraces the category of cattle spoken of specifically in Article 48. In Mohan
Kumar Singhania & Ors. v. Union of India & Ors., 1992 Supp (1) SCC 594, a governmental decision to
give utmost importance to the training programme of the Indian Administrative Service selectees
was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the
governmental decision was in consonance with one of the fundamental duties. In State of U.P. v.
Yamuna Shanker Misra & Ors., (1997) 4 SCC 7, this Court interpreted the object of writing the
confidential reports and making entries in the character rolls by deriving support from Article 51-A(j)
which enjoins upon every citizen the primary duty to constantly endeavour to strive towards
excellence, individually and collectively. In T.N. Godavarman Thirumalpad v. Union of India & Ors.,
(2002) 10 SCC 606, a three-Judge Bench of this Court read Article 48-A and Article 51-A together as
laying down the foundation for a jurisprudence of environmental protection and held that "Today,
the State and the citizens are under a fundamental obligation to protect and improve the
environment, including forests, lakes, rivers, wild life and to have compassion for living creatures". In
State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129, Articles 48 and 51-A(g) of the
Constitution were read together and this Court expressed that these provisions have to be kept in
mind while interpreting statutory provisions. One of the other reasons which has been advanced for
reversal of earlier judgments was that at the time when these earlier judgments were delivered
Article 48(A) and 51(A) were not there and impact of both these Articles were not considered. It is
true that Article 48(A) which was introduced by the 42nd Constitutional Amendment in 1976 with
effect from 3.1.1977 and Article51(A) i.e. fundamental duties were also brought about by the same
amendment. Though, these Articles were not in existence at that time but the effect of those Articles
were indirectly considered in the Mohd. Hanif Qureshi's case in 1958. It was mentioned that cow
dung can be used for the purposes of manure as well as for the purpose of fuel that will be more
echo friendly.

Article 51(A) Fundamental duties It shall be the duty of every citizen of India

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the
National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement PART V THE UNION CHAPTER I THE
EXECUTIVE The President and Vice President.

State of Gujarat vs Mirzapur Moti Kureshi Kassab on 26 October, 2005 the contexts in which article
51(a) appears in the document By enacting clause (g) in Article 51-A and giving it the status of a
fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the
spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The
Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act,
1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A
speaks of "environment", Article 51-A(g) employs the expression "the natural environment" and
includes therein "forests, lakes, rivers and wild life". While Article 48 provides for "cows and calves
and other milch and draught cattle", Article 51-A(g) enjoins it as a fundamental duty of every citizen
"to have compassion for living creatures", which in its wider fold embraces the category of cattle
spoken of specifically in Article 48. In Mohan Kumar Singhania & Ors. v. Union of India & Ors., 1992
Supp (1) SCC 594, a governmental decision to give utmost importance to the training programme of
the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of
the Constitution, holding that the governmental decision was in consonance with one of the
fundamental duties. In State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC 7, this Court
interpreted the object of writing the confidential reports and making entries in the character rolls by
deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly
endeavour to strive towards excellence, individually and collectively. In T.N. Godavarman
Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606, a three-Judge Bench of this Court read
Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of
environmental protection and held that "Today, the State and the citizens are under a fundamental
obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to
have compassion for living creatures". In State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129,
Articles 48 and 51-A(g) of the Constitution were read together and this Court expressed that these
provisions have to be kept in mind while interpreting statutory provisions. It is thus clear that faced
with the question of testing the constitutional validity of any statutory provision or an executive act,
or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental
right by way of regulation, control or prohibition, the Directive Principles of State Policy and
Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role. The
decision in Quareshi-I in which the relevant provisions of the three impugned legislations was struck
down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48
was assigned its full and correct meaning and due weight age was given thereto and Articles 48-A
and 51-A(g) were available in the body of the Constitution. Article 253 Legislation for giving effect to
international agreements notwithstanding anything in the foregoing provisions of this 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.

CONCLUSION

Connecting human rights and environment is a valuable sourcebook that explores the uncharted
territory that lies between environmental and human rights legislation. Human beings can ensure
fundamental equality and adequate conditions of life in an environment that permits a life of dignity
and well-being. There is an urgent need to formulate laws keeping in mind the fact that those who
pollute or destroy the natural environment are not just committing a crime against nature, but are
violating human rights as well. Indeed, health has seemed to be the subject that bridges gaps
between the two fields of environmental protection and human rights. The advancement of the
relationship between human rights and environment would enable incorporation of human rights
principles within an environmental scope, such as antidiscrimination standards, the need for social
participation and the protection of vulnerable groups.
The Constitutional and Legislative measures – The Constitution of India and
Environment.
To protect and improve the environment is a constitutional mandate. It is the commitment for a
country wedded to the ideas of a welfare State. The Indian constitution contains specific provisions
for environmental protection under the chapters of Directive Principles of the State Policy and
Fundamental Duties. The absence of any specific provision in the Constitution recognising the
fundamental right to (clean and wholesome) environment has been set off by judicial activism in the
recent times.

2.2 Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment in the seventies prompted the
Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment
added Art. 48A to the Directive Principles of State Policy. It Declares:-

“the State shall endeavor to protect and improve the environment and to safeguard the forests and
wildlife of the country”.

A similar responsibility imposed upon on every citizen in the form of Fundamental Duty –

2.3 Art. 51(A) (g)

“to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have
compassion for living creatures”.

The amendments also introduced certain changes in the Seventh Schedule of the Constitution. ‘Forest’
and ‘Wildlife’ were transferred from the State list to the Concurrent List. This shows the concern of Indian
parliamentarian to give priority to environment protection by bringing it out the national agenda.
Although unenforceable by a court, the Directive Principles are increasingly being cited by judges was a
complementary to the fundamental rights. In several environmental cases, the courts have guided by the
language of Art. 48A. and interpret it as imposing “an obligation” on the government, including courts, to
protect the environment.

In L.K Kollwal V State of Rajasthan, a simple writ petition by citizens of Jaipur compelled the
municipal authorities to provide adequate sanitation. The court observes that when every citizen owes a
constitutional duty to protect the environment (Art.51A), the citizen must be also entitled to enlist the
court’s aid in enforcing that duty against recalcitrant State agencies. The Court gave the administration
six month to clean up the entire city, and dismissed the plea of lack of funds and staff.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that certain common
properties such as rivers, forests, seashores and the air were held by Government in Trusteeship for the
free and unimpeded use of the general public. Granting lease to a motel located at the bank of the River
Beas would interfere with the natural flow of the water and that the State Government had breached the
public trust doctrine.

A matter regarding the vehicular pollution in Delhi city, in the context of Art 47 and 48 of the Constitution
came up for consideration in M.C. Mehta vs. Union of India (Vehicular Pollution Case). It was held to be
the duty of the Government to see that the air did not become contaminated due to vehicular pollution.
The Apex court again confirming the right to healthy environment as a basic human right stated that the
right to clean air also stemmed from Art 21 which referred to right to life. This case has served to be a
major landmark because of which lead-free petrol supply was introduced in Delhi. There was a complete
phasing out old commercial vehicles more than 5 years old as directed by the courts. Delhi owes its
present climatic conditions to the attempt made to maintain clean air.

The Ganga Water Pollution case: M C Mehta V. Union of India, AIR 1988, SC 1037

The owners of some tanneries near Kanpur were discharging their effluents from their factories in Ganga
without setting up primary treatment plants. The Supreme Court held that the financial capacity of the
tanneries should be considered as irrelevant while requiring them to establish primary treatment plants.
The Court directed to stop the running of these tanneries and also not to let out trade effluents from the
tanneries either directly or indirectly into the river Ganga without subjecting the trade effluents to a
permanent process by setting up primary treatment

In the very recent case of T.N. Godavarman Thirumulpad v. Union of India, a case concerning
conservation of forests, Justice Y.K. Sabharwal, held: Considering the compulsions of the States and the
depletion of forest, legislative measures have shifted the responsibility from States to the Centre.
Moreover any threat to the ecology can lead to violation of the right of enjoyment of healthy life
guaranteed under Art 21, which is required to be protected. The Constitution enjoins upon this Court a
duty to protect the environment.

2.4 Article 246

Art.246 of the Constitution divides the subject areas of legislation between the Union and the States. The
Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air
trafficking, oilfields, mines and inter-state rivers. The State List (List II) includes public health and
sanitation, agriculture, water supplies, irrigation and drainage, fisheries. The Concurrent list (List III)
(under which both State and the Union can legislate) includes forests, protection of wildlife, mines and
minerals and development not covered in the Union List, population control and factories. From an
environmental standpoint, the allocation of legislative authority is an important one – some
environmental problem such as sanitation and waste disposal, are best tackled at the local level; others,
like water pollution and wildlife protection, are better regulated uniform national laws.

2.5 Article 253

Art.253 of the Constitution empowers Parliament to make laws implementing India’s international
obligations as well as any decision made at an international conference, association or other body.
Art.253 states: Notwithstanding anything in the foregoing provision provisions of this 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. The Tiwari Committee in 1980 recommended that a
new entry on “environmental Protection” be introduced in the concurrent list to enable the centre to
legislate on environmental subjects, as there was no direst entry in the 7th seventh enables Parliament to
enact comprehensive environment laws. The recommendation, however, did to consider parliament’s
power under Art.253

2.6 Article 14 and Article 19 (1) (g)

ART. 14 states: “The states shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.’’ The right to equality may also be infringed by government
decisions that have an impact on the environment. An arbitrary action must necessary involve a negation
of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal
permission for construction that are contrary to development regulations.

2.7 Article 21
(Right to Wholesome Environment)

"No person shall be deprived of his life or personal liberty except according procedure established by
law."

In Maneka Gandhi v Union of India, the Supreme Court while elucidating on the importance of the
‘right to life’ under Art. 21 held that the right to life is not confined to mere animal existence, but extends
to the right to live with the basic human dignity (Bhagwati J.)

Similarly while interpreting Art.21 in Ganga Pollution Case as discussed before, Justice Singh justified the
closure of polluting tanneries observed: "we are conscious that closure of tanneries may bring
unemployment, loss of revenue, but life. Health and ecology have greater importance to the people."

Environmental Laws In India

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974

The Act prohibits discharge of pollutants into water bodies beyond a given standard and lays down
penalties for non-compliance with its provisions.

It set up the Central Pollution Control Board (CPCB) which lays down standard for the prevention and
control of water pollution. At the state level, the State Pollution Control Board (SPCB) functions under the
direction of CPCB.

The functions of CPCB have been laid down in section 16 whereas the functions of SPCB has been laid
down in section 17.

The sampling of effluents for test has been laid down in section 21.

In Delhi Bottling Co. Pvt. Ltd. V. CPCB, AIR 1986 Del 152, it was found that the representatives of board
got the samples analysed from a non-recognized laboratory by the state. The court held that since section
21 was not complied upon, the test results were inadmissible as evidence.

The Air (Prevention And Control Of Pollution Act, 1981)

To implement the decision taken in the Stockholm Conference, the Parliament enacted the Air Act under
Article 253.
It controls mainly air pollution and its abatement. Also establishes air quality standards.
The Central and State Boards set up under section 16 and 17 independently notify emission standards.
Every industrial operator within a declared air pollution area, must obtain a permit from the State Board
(Sec-21(1) and (2)).
Within four months from the date of application for the permit, the board must complete the formalities
– either grant or refuse consent.

Power of the Boards:

· Power of entry and inspection
· Power to take samples
· Power to give directions

Other important laws:

1986 - The Environment (Protection) Act authorizes the central government to protect and improve
environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting
and /or operation of any industrial facility on environmental grounds.

1989 - The objective of Hazardous Waste (Management and Handling) Rules is to control the generation,
collection, treatment, import, storage, and handling of hazardous waste.

1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for
public liability insurance for the purpose of providing immediate relief to the persons affected by accident
while handling any hazardous substance.

2000 - The Municipal Solid Wastes (Management and Handling) Rules, apply to every municipal authority
responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal
solid wastes.

2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules

lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud
speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or
during any cultural or religious festive occasion.

1927 - The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was
enacted to ‘consolidate the law related to forest, the transit of forest produce, and the duty leviable on
timber and other forest produce’.

1948 – The Factories Act and Amendment in 1987 was the first to express concern for the working
environment of the workers. The amendment of 1987 has sharpened its environmental focus and
expanded its application to hazardous processes.

Writs And PILs For Safeguarding The Environment

A writ petition can be filed to the Supreme Court under Art.32 and the High Court under Art.226, in
the case of a violation of a fundamental right. Since the right to a wholesome environment has been
recognised as an implied fundamental right, the writ petitions are often restorted to in environment
cases. Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental
matters. For instance, a Mandamus (a writ to command action by a public authority when an
authority id vested with power and wrongfully refuses to exercise it ) would lie against a municipality
that fails to construct sewers and drains, clean street and clear garbage (Rampal v State of
Rajasthan) likewise, a state pollution control board may be compelled to take action against an
industry discharging pollutants beyond the permissible level.

The writs of certiorari and prohibition are issued when an authority acts in excess of jurisdiction, acts
in violation of the rules of natural justice, acts under a law which is unconstitutional, commits an
error apparent on the face of the record, etc. For instance, a writ of certiorari will lie against a
municipal authority that consider a builder’s applications and permits construction contrary to
development riles e.g. wrongfully sanctions an office building in an area reserve for a garden.
Similarly, against water pollution control board that wrongly permits an industry to discharge
effluents beyond prescribe levels.

A writ of Certiorari will lie against a municipal authority that permits construction contrary to
development rules or acts in excess of jurisdiction or in violation of rules of natural justice for
instance wrongly sanctioning an office building in an area reserved for garden.

When a fundamental right, which includes right to wholesome environment is violated Art. 32 and
226 provide appropriate remedy.

In [Link] Kumar v. Government of Tamil Nadu, 1998, AIHC 4498

The party an individual was troubled by the excessive noise pollution and vibrations caused by
electrical motors, diesel engines, and generator used by a Hotel. The high court held that an affected
person can maintain a writ petition while rejecting the hotel owner’s plea that a civil suit would be
proper remedy.

Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by
members of the public or large parts of it.

In a public interest case, the subject matter of litigation is typically a grievances against the violation
of basic human rights of the poor and helpless or about or about the content or conduct of
government policy this litigation is not strictly adversarial (in a adversarial procedure, each party
produces his own evidence tested by cross-examination by other side) and in it a judge play a large
role in organising and shaping the litigation and in supervising the implementation of relief.

Since the 1980s public interest litigation (PIL) has altered both the litigation landscape and the role
of the higher judiciary in India. Supreme Court and High Court judges were asked to deal with public
grievances over flagrant human rights violations by the state or to vindicate the public policies
embodied in statutes or constitutional provisions. This new type of judicial business is collectively
called public interest litigation.

In Ramdas Shenoy v The Chief Officer, Town Municipal Council , Udipi a rate tax payer’s right to
challenge an illegal sanction to convert a building into a cinema was upheld by Supreme Court.

In Mahesh R Desai V. Union of India, a journalist complained to the Supreme Court that the
national coastline was being sullied by unplanned development that violated a Central Government
directive. The Supreme Court registered the letter as a petition, requested the court’s legal aid
committee to appoint a lawyer for the petition and issued notice to the Union Government and the
government of the all States.

Taj Mahal Case:

In Taj Mahal's case (M C Mehta V. Union of India, AIR 1997, SC 734), the Supreme Court issued
directions that coal and coke-based industries in Taj Trapezium (TTZ) which were damaging Taj
should either change over to natural gas or to be relocated outside TTZ. Again, the Supreme Court
directed to protect the plants planted around Taj by the Forest Department as under:

The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that water is
supplied to the plants... The Union Government is directed to release the funds immediately without
waiting for receipt of the proposal from the U.P. Government on the basis of the copy of the report.
Funding may be subsequently settled with the U.P. Government, but in any set of circumstances for
want of funds the officer is directed to see that plants do not wither away.
The Court held that 292 industries located and operating in Agra must changeover within fixed time
schedule to natural gas as industrial fuel or stop functioning with coke /coal and get relocated. The
industries not applying for gas or relocated are to stop functioning with coke/coal from 30-04-97.
The Shifting industries shall be given incentives in terms of the provisions of Agra Master Plan and
also the incentive normally extended to the new industrial units.

The integration of the international principles of environmental law into the Indian legal framework
is an important consequence of the emergence of Public Interest Litigation in the realm of
environmental law. (Razzaque, 2004) In fact, the application and re-interpretation of international
legal principles in the Indian context reflect a greater concern with making hazardous industrial
enterprises responsible towards environmental concerns. In M C Mehta v Union of India, the
Supreme Court extends the principle of strict liability drawing from the Rylands v Fletchers case in
English law to formulate a principle of absolute liability whereby an enterprise carrying out a
hazardous activity is “absolutely liable” to compensate for any harm arising from such activity. The
principle of strict liability in English common law states that “a person will be strict liable when he
brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as
a natural consequence of its escape.”(Razzaque, 2004: 210) However, in formulating a principle of
absolute liability, the Court contends that such liability is not subject to any of the exceptions“ under
the rule in Rylands v Fletcher.”

The Bhopal Gas Leak Case

The Bhopal disaster raised complex legal questions about the liability of parent companies for the
acts of their subsidiaries, the responsibilities of multinational corporations engaged in hazardous
activities, the transfer of hazardous technologies and the applicable principles of liability. Bhopal was
inspirational factor for the judicial innovation in the area of evolving principles of corporate liability
for use of hazardous technology.

On December 3, 1984,highly toxic methyl isocyanides (MIC), which had been manufactured and
stored in Union Carbide’s chemical plant in Bhopal, escaped into the atmosphere and killed over
3,500 people and seriously injured about 2 lakh people.

The Bhopal gas leak disaster (Processing of Claims) Act, 1985 was passed by parliament to ensure
that the claims arising out of the Bhopal disaster were dealt with speedily, effectively, equitably and
to the best advantage of the claimants.

High Court Judgment:

Justice Seth used English Rules of procedure to create an entitlement to interim compensation (i.e. it
is permissible for courts to grant relief of interim payment under the substantive law of torts). Under
the English rules, interim relief granted in personal injury cases if a prima facie case is made out. He
said that “more than prima facie case have been made out” against the Carbide.

He observed that the principle of absolute liability without exceptions laid down in M.C. Mehta case
applied more vigorously to the Bhopal suit. He holds that Carbide is financially a viable corporation
with $ 6.5 billion unencumbered asset and $200millions encumbered assets plus an insurance which
could cover up to $250millions worth of damages. Given carbide’s resources, it is eminently just that
it meet a part of its liability by interim compensation (Rs.250cr.)

In Union Carbide Corporation v Union of India (AIR 1990 SC 273), the Supreme Court secured a
compromise between the UCC and Government of India. Under the settlement, UCC agreed to pay
US $470 million in full and final settlement of all past, present and future claims arising from the
Bhopal disaster. In addition to facilitate the settlement, the Supreme Court exercised its
extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings
that had arisen out of the Bhopal disaster. It was declared by the court that if the settlement fund is
exhausted, the Union of India should make good the deficiency.

Review petition under Art.137 and writ petitions under Art.32 of the Constitution of India were filed
questioning the constitutional and under the Bhopal Act (providing for the registration and
processing of claims) and the resultant categorization of the victims was also upheld. It was laid
down that there is no need to tie down the tortfeasor to future liability [UCC v UOI AIR 1992 SC 248].

Criminal Liability of Carbide Officials:

In UCC v UOI (AIR 1992 SC 248), the supreme court reinstate criminal charges for homicide not
amounting to murder’ (Sec. 304, Part II, IPC) against top executives at Union Carbide( viz. nine UCIL
employees and three foreign accused, including Warren Anderson, the CEO) while uploading the rest
of the settlement. The CBI in December 1993 finally prepared the documents necessary to extradite
Warren Anderson.

Conclusion:
The powers vested to the Pollution Control Boards are not enough to prevent pollution. The Boards
do not have power to punish the violators but can launch prosecution against them in the Courts
which ultimately defeat the purpose and object of the Environmental Laws due to long delays in
deciding the cases. Thus, it is imperatively necessary to give more powers to the Boards.

What we need is social awareness from below, not laws from the above. No law works out smoothly
unless the interaction is voluntary. In order to educate people about the environmental issues, there
should be exhibition of slides in the regional languages at cinema houses and television free of cost.
Further, as directed by the Supreme Court of India in M C Mehta Case (M C Mehta V Union of India
1992, SC 382) school and college levels in graded system so that there should be general growth of
awareness.

Substantive and Procedural Penal Laws related to Environment

Environmental Pollution and CrPC

Environmental pollution is a type of public nuisance. Section 268 of the Indian Penal Code,
1960 defines the term public nuisance as an act or omission of some act which results in annoyance
or common injury to the public. In simple words, it is an act which neglects the common good of the
public and harms or annoys them by causing such an act, whereas private nuisance is an act which
only harms few individuals rather than the public at large. Section 290 of the Indian Penal Code,
1960 deals with the punishment for public nuisance.

The Code of Criminal Procedure, 1973, or the Criminal Procedure Code is the law that deals with the
procedure of administration of substantive criminal law in India. It came into force on 1st April
1974, which contains 484 sections that have been divided into 37 chapters.
Chapter X of the CrPC, “Maintenance of public order and tranquility” provides efficacious,
preventive, and expeditious remedies for public nuisance cases which include air, noise, water
pollution, and unsanitary conditions. It contains the procedure for the enforcement. The entire
corpus of 13 sections of CrPC under Chapter X i.e. from Section 133 to 144A is devoted to mitigating
public nuisance.

Provision for Public nuisance under Chapter X

As discussed in the earlier part, the provisions under chapter X of CrPC provide speedy and effective
remedies against public nuisance among which environmental pollution is one.

Section 133 deals with the conditional order for removal of the nuisance, it empowers a District
Magistrate and Sub-Divisional Magistrate to stop the nuisance on receiving such information.

Section 134 deals with the service of summons or notification of order. It can only resort when order
is not served in the manner provided.

Section 135 deals with the person against whom the order is addressed to obey or show cause.
Under this section, two contingencies are envisaged that:

Perform in a specified manner in the order within the time period, or

Appear and show cause in accordance with the order.

It also provides that the person against whom the order is made should be given a reasonable
opportunity to be heard and answer the allegations made against him.

Section 136 deals with the penalty if the person against whom the order is made failed to comply
with Section 135 of CrPC. The penalty is prescribed under Section 188 of the Indian Penal Code,
1860.

Section 137 deals with the procedure where the existence of public rights is denied. It also applies to
those cases only where there is no decision about the existence of right by any competent civil court
and strong evidence in support of that against any magistrate.

These are some of the provisions under Chapter X of CrPC, the main and the utmost important
provisions are under Section 133, which is discussed further in detail.

Section 133

Section 133 of CrPC provides that a sub-divisional magistrate and district magistrate or any other
executive magistrate to whom the powers are granted by State Government can make a conditional
order to remove such kind of nuisance on receiving information about the same or the report of any
police officer. If the person who is creating nuisance objects to the order then the order can be made
absolute by the concerned magistrate. Any order made by the magistrate under this provision shall
not be questioned in any civil court. In the case of Govind Singh v. Shanti Sarup (1978), the word
nuisance was defined in very liberal terms and it includes the disposal of substances, the
construction of structures, the conduct of occupation, and trade, and confinement or disposal of any
dangerous animal.

If the imperative tone of this section is read with the punitive tone of Section 188 of IPC (provides
punishment for a maximum of six months and a fine extendable up to one thousand rupees) it
makes the prohibited act a mandatory rule.
To invoke this section, it is not required to have a large number of complaints or protest against the
nuisance. It can be invoked on simply receiving a report of a public officer or other information that
is deemed to be fit as a piece of evidence. This pronouncement was made in the case of Krishna
Gopal v. The State of M.P (2016). In this case, a complaint was registered against a glucose factory
which was causing air pollution due to the discharge of steam in the air resulting in fly ash and noise
pollution. This all cumulatively caused discomfort to the residents of that locality.

To understand the application of the section in a facile manner is to simply understand the
conditions required as given in the case of Suhelkhan Khudayar Khan v. State of Maharashtra (2003),
these followings conditions have to be satisfied for providing a sanction under this section:

 There should be a public nuisance i.e. the number of persons injuriously affected is so
considerable (there should be danger or inconvenience or it is about to be caused).
 It should not be a private dispute between the different members of the public and if it is
then the adequate forum is the civil court.
 It should be the case of imminent danger to the public interest.

The nature and the scope of this section is explained by the judges in the case of P.C. Cherian v. State
of Kerala (1981). In this case, the Sub-Divisional Magistrate of Kottayam directed the stoppage of
mixing of carbon in two rubber industries which were situated in the industrial area. As there was
no dissemination prevention equipment. The High Court sentenced that the dissemination of carbon
black in the environment is causing a public nuisance and also affecting the respiratory organs of the
people.

Independence of Section 133

Section 133 of CrPC is independent of the other laws and statutes. Even after the creation of new
legislatures the powers of the magistrate inscribed in this section are not repealed. There are many
other special and local laws dealing with public nuisances such as Water (Prevention and Control of
Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection)
Act, 1986, and many more.

Some examples of independence of Section 133 are as follows:

Magistrates have the power to close a factory even after no appreciation certificate from the
Pollution Control Board is produced. – Nagarjuna Paper Mills Ltd. v. SDM and RDO (1987).

Section 133 doesn’t get repealed automatically after the commencement of any new law. – Lakshmi
Cement Case (1994).

Section 24 of Environment Protection Act, 1986 specifically says that if any act or omission commits
an offence under this act or any other act then the offender will be liable according to that other act.

The Supreme Court in the case of State of M.P v. Kedia Leather & Liquor Ltd. (2000) declared that
the enactment of new pollution control laws doesn’t repeal Section 133. It was also said that areas
of this section and pollution laws are not identical in nature.

Landmark Judgments

Ramachandra Malojirao Bhonsle v. Rasikbhai Govardhan Bhai Raiyani (2000), in this case the
petitioner who purchased the ground floor flat in a building before the installation of motor filed a
complaint of use of electric motor by other flat members as it was causing a nuisance to him. The
matter was reported to a Sub-divisional magistrate who directed to shift the motor from below the
flat to within the premises so that it causes no pollution. The judgment was challenged on the basis
of jurisdiction under Sec 133 as it can be used in respect of public nuisance, not a private nuisance.
The Gujarat High Court observed that the magistrate should have to keep in mind that if the
nuisance is not created at a public place no direction can be given under Section 133.

Shaukat Hussain and Anr. v. Sheodayal Saksaina (1957), in this case an application was filed alleging
that the small particles of cotton are blown in the air by a cotton carding machine of five horsepower
situated in the town of Rewa. It was causing breathing problems to the people and the machine was
also producing noise and disturbance to public peace. It was observed that Section 133 of CrPC
provides an efficacious, and expeditious remedy in case of urgency where the danger to public
health and interest is considered. Paragraph 3 of Section 133 runs as follows: “That the conduct of
any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or
physical comfort of the community, and that in consequence such trade or occupation should be
prohibited or regulated or such goods or merchandise should be removed or the keeping thereof
regulated.” The term “community” means that the public at large or all the residents of that
locality.

Ram Autar v. State of Uttar Pradesh (1962), in this case the Supreme Court interpreted Section 133
of CrPC. The three appellants who sold vegetables, parked their vegetable carts in front of
residential houses. This caused inconvenience and obstruction to the users of the roads. The High
Court passed the order that the business of vegetable auctioning cannot be carried without causing
inconvenience to the people, it can be prohibited even though it is conducted in a private place and
the order of the magistrate is valid. But the Supreme Court with three bench judges: Justice Das,
Justice Kapur, and Justice Dayal stated that: “It appears to us that the conduct of the trade of this
nature and indeed of other trades in localities of a city where such trades are usually carried on is
bound to produce some discomfort though at the same time resulting perhaps in the good of the
community in other respects. In making the provisions of section 133 of the Code of Criminal
Procedure, the legislature cannot have intended the stoppage of such trades in such part of town,
merely because of the discomfort caused by the noise in carrying on the trade.”

Conclusion

It is clear and evident from the above discussion that the laws governing environmental protection
are in existence even before the enactment of the Environment (Protection) Act and other specific
laws by the Indian Legislature and Judiciary. They use the criminal machinery for the protection of
the environment to make sure that problems regarding pollution can be solved rapidly and
economically. Environmental pollution is one of the biggest doom for our society and to safeguard
the environment as well as the lives of the public at large should be our prima facie concern.

Justice V.R Krishna has well said that “it is not how many laws we have, it is how effectively we
implement”. Though in the present situation we have so many laws concerning the environment but
provisions like Section 133 of CrPC help to achieve this goal efficiently, and expeditiously. These laws
are not enough to preserve our environment, the public support and awareness is also the key
component for better environmental governance and also for the abatement of the environmental
nuisance.

“The Sky is like Father

The Earth is like Mother and
The Space as Their Son
The Universe consisting the Three
is like a Family and
Any kind of damage done to any one of the Three
Throws the Universe out of Balance”
-Rigveda

PIL and Protection of the Environment

The Indian judiciary adopted the technique of public interest litigation for the cause of
environmental protection in many cases. The Supreme Court & High Courts shaded the inhibitions
against refusing strangers to present the petitions on behalf of poor and ignorant individuals. The
basic ideology behind adopting PIL is that access to justice ought not to be denied to the needy for
the lack of knowledge or finances. In PIL a public spirited individual or organization can maintain
petition on behalf of poor & ignorant individuals.

In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation
and Entitlement Kendra vs. State of U.P. the Supreme Court prohibited continuance of mining
operations terming it to be adversely affecting the environment.

In Indian Council for Enviro-Legal Action vs. Union of India , the Supreme Court cautioned the
industries discharging inherently dangerous Oleum and H acid. The court held that such type of
pollution infringes right to wholesome environment and ultimately right to life.

In another case M.C. Mehta vs. Union of India the Supreme Court held that air pollution in Delhi
caused by vehicular emissions violates right to life under Art. 21 and directed all commercial vehicles
operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.

In Church of God (Full Gospel)in India [Link] Majestic Colony Welfare Association the Supreme
Court observed that noise pollution amounts to violation of Art.21 of the Constitution.

In landmark case Vellore Citizens' Welfare Forum vs. Union of India the Supreme Court allowed
standing to a public spirited social organization for protecting the health of residents of Vellore. In
this case the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic
chemicals in the river, thereby jeopardising the health of the residents. The Court asked the
tanneries to close their business.

Conclusion:
In this manner, our judiciary has used the tool of PIL quite effectively for the cause of environmental
protection. But the judiciary has shown wisdom in denying false petitions seeking to advance private
interests through PIL as evident from the decision of the Supreme Court in Subhash Kumar vs. State
of Bihar. Hence, PIL has proved to be a great weapon in the hands of higher courts for protection of
environment & our judiciary has certainly utilized this weapon of PIL in best possible manner.

By, kamran zaffar

Kashmir law college

 9622817330

(Don’t rely completely on notes)

Unit II

Water (Prevention and Control of Pollution) Act, 1974

Introduction

The Act came into force in 1974 and is applicable to the states of Assam, Bihar, Madhya Pradesh,
Gujrat, Haryana, Tripura, West Bengal, Jammu and Kashmir, Rajasthan, Kerala, and the union
territories. It could also be adopted by any state through a resolution passed declaring to adopt the
Act. The Water (Prevention and Control) Act, 1974 was introduced to prevent and control water
pollution and to restore and maintain the wholesomeness of water for the establishment.

The Act also confers some powers to the established bodies such as the central board and the state
board to control pollution of the water bodies.

Definitions

Section 2 of the Act contain certain definitions:

“Board “means either the central board or the state board.

Section 2 (e) of the Act defines what is pollution, according to Section 2(e) pollution means any
contamination of water or alteration of the physical, chemical and biological properties of water
or disposing of any sewage waste in water which is likely to cause nuisance or renders such
water to be harmful to public health or safety or to domestic, industrial or other legitimate use
or harmful to the life and health of the animals and aquatic plants.

Includes- watercourse (flowing or dry), inland water whether natural or artificial, subterranean
water or sea or tidal waters as the state may prescribe from time to time.

According to Section 2 (b) Central Board means Central Pollution Control Board.

According to Section 2 (h) State Board means State Pollution Control Board.
Agencies for controlling Water Pollution

There are two agencies set up as per the Act for controlling and preventing water pollution .

 Central Board- Central Pollution Control Board

Constitution and Composition (Section 3)

The Central Government through a notice in the official gazette has the power to assign or set up a
Central Board named as Central Pollution Control Board. As far as the composition of the board is
concerned the Central Board is to contain the following members:
A chairman who has the knowledge or has practical experience in dealing with cases relating to
environmental protection.

The chairman is to be appointed by the central government only.

1. Not more than 5 officials to represent the central government.

2. Not more than 5 members to be nominated by the central government from the
members of the State Board.
3. Maximum 3 members appointed by the central government to represent the interests of
agriculture, fisheries, trade or any other interest as the government may seem fit.
4. 2 persons to represent the companies or corporations owned, controlled or by the
central government.
5. A full-time member secretary having complete knowledge, experience and qualification
of scientific management and prevention of environmental pollution.

Functions of Central Board (Section 16)

1. Advise the Central Government on any matter concerning the prevention and control of
water pollution.
2. Coordinate the activities of the State Boards and resolve disputes among them.
3. provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of water pollution and prevention,
control or abatement of water pollution.
4. Plan and organize the training of persons engaged or to be engaged in for the
prevention, control or abatement of water pollution on such terms and conditions as the
Central Board may specify.
5. Organize through mass media a comprehensive program regarding the prevention and
control of water pollution.

 State Board- State Pollution Control Board

Constitution and Composition (Section 4)

1. The state government through an official notice in the Gazette has the power to assign or set
up a state board named as State Pollution Control Board. The composition of the state board
is as follows:
2. A Chairman who either has the knowledge or some experience in dealing with cases relating
to environmental pollution.
3. Not more than 5 members appointed by the state government to represent the
government.
4. Not more than 2 persons by the state government who are functioning as members of the
local authorities within the state
5. Not more than 3 persons nominated by the state government to represent the interest of
fisheries, agriculture, trade and any other interest as the government may seem fit.

6. 2 people from companies, corporations which are either controlled, owned or managed
 by the state.

7. A member secretary who has the knowledge, qualifications, and experience in dealing

With cases pertaining to environmental pollution.

Functions of State Board (Section 17)

1. To plan a comprehensive program for preventing and controlling the pollution of the wells
and streams in the state and to secure its execution.
2. To advise the State Government on matters relating to prevention and controlling water
pollution.
3. Collaborating with the central board to train persons employed or to be employed in
preventing, controlling water pollution.
4. To lay down, modify the effluent standards of sewage and trade effluents and for the quality
of receiving water resulting from the discharge of effluents and to classify waters of the
state.
5. To evolve methods of utilizing the sewage and suitable trade effluents in agriculture.
6. The state Board has the authority to set up laboratories to enable the board to perform its
function efficiently, including collecting samples of water from any stream or sewage or
trade effluents.

Prevention and Control of Water Pollution

According to Section 19 of the Act, the state board has the power to limit the territorial jurisdiction
of any order passed by it in matters relating to prevention and controlling water pollution. This
means that the orders passed by the state board will only apply in the areas that are affected by
water pollution .it is up to the state board to determine which area is to be declared water polluted
and which is not, this can be done by making reference to a map or making reference to a line of any
watershed or the boundary of any district.

According to Section 20 of the Act, the state board also has the power to inspect any land, conduct
surveys or gauge in an area if it thinks fit for controlling or preventing water pollution. It can also ask
any company, industry to dispose of the information pertaining to the construction, installation, and
operation of its establishment. Section 21 of the Act empowers the state board or any employee on
its behalf to analyse any stream or well for the purpose of preventing and controlling water purpose.

The state board also has the power to stop any person to enter into any poisonous, noxious or
polluting matter determined in accordance with the standards laid down in the Act. According
to Section 25, no person is allowed to set up an industry or start a new operation or processor to any
treatment of sewage without prior approval of the state board, the state board may grant him a
notice of approval and only after that he is entitled to continue or start a new business.

If a person starts a new operation before prior approval of the board, the board may impose any
conditions as it may think fit for not obtaining notice of approval. Section 27 of the Act gives power
to the state board not to grant any notice for setting up an industry or continuation of an existing
operation. If the company has been granted permission with some conditions attached, the state
board has the power to review those conditions which it attached before giving the notice of
approval.

Joint Board
An agreement may be entered into by the state government of one state with the state government
of another state to set up a joint Board. Similarly, the Central Government and the government of
other union territories can also enter into an agreement for constituting a joint board.

Composition of Joint Board (Section 14)

A joint board consists of the following members namely:

1. A chairman who has the knowledge, experience, and qualifications in matters relating to
prevention and controlling environmental pollution.
2. 2 members from each state government nominated by their respective state to represent
the state.
3. A nonofficial appointed by each state to represent the interests of agriculture, fisheries,
trade or any other interest of the participating state.
4. 2 members from the companies, corporations nominated by the central government which
is owned, controlled or managed by the participating state.
5. A full-time member secretary who has the required skills, experience and qualifications in
science, engineering or management aspect of controlling and preventing pollution to be
appointed by the central government.

Disqualification of Members (Section 6)

Section 6 of the Act mentions the grounds on which a member can be disqualified from being a
member of the board:

1. A person who is judged insolvent or has not paid his debts or has compounded with his
creditors cannot become a member.
2. A person of unsound mind or who has been convicted of such an offense which according to
the central government or state government may involve moral turpitude.
3. If a person is holding any office of profit or is a salaried employee of any company, firm
which is connected with the board in that situation also he can be a member of any board.
4. If a member has misused his powers by virtue of being a member or holding any position in
connection with the board, then the central government or for that matter the state
government may disqualify that member in the general interest of the public.

Meetings of the Board (Section 8)

According to Section 8, in every three months the board has to conduct a meeting and review all the
laws and the orders implemented by it , apart from that it also has to discuss the future plan of
Action, if the chairman of the board thinks that an urgent meeting is required to address a particular
issue then in that case meeting among the members of the board can be held at any time as
prescribed by the chairman.

Constitution of the committees (Section 9)

Section 9 permits the central or state board to constitute a committee of members either from the
existing members or totally new members who do not have any connection with the company for
the performance of the duties laid down in the Act.
Members of the committee shall meet at any time or at any place and shall observe any rule or
procedure as it may consider necessary for the performance of its duties. The members will be paid
fees, allowances for attending meetings and performing functions of the board from time to time.

Provision of appeals (Section 28)

Any person who is aggrieved by the decision of the state board made under section 25 to section
227, has 30 days time to make an appeal in the concerned appellate authority as established by the
state government. The appellate authority may consist of a single person or three people as the
government may think fit.

Penalties
1. If any person fails to comply with the orders of the board under subsection 2 and 3 of
Section 20 then in that case on conviction he is punishable for imprisonment for 3 months or
fine or both.
2. If the person fails to comply with orders of the board under clause e of subsection 1 of
Section 32 or with subsection 2 of Section 33 then, in that case, the person would be
punishable with imprisonment for 6 months extending to 6 years or a fine or both.
3. Apart from the above-mentioned penalties. Section 42 mentions penalties for different kinds
of Acts namely:
4. If any person removes, destroys or pull down any notice put up by the board.
5. If someone obstructs the member of the board or any other person who is Acting under the
board.
6. If a person fails to produce any information as required by the member of the board for the
performance of his duties.
7. Or if he gives any information to the members which he knows to be false.
8. Then In all the above Acts if the person is convicted, he would be punishable by
imprisonment for a maximum period of 3 months or fine that may extend up to 10,000
rupees or both.

Conclusion

Water pollution is a big issue in India and controlling and preventing it is another big issue, till now
we are not able to create awareness among the people regarding the importance of conserving
water bodies, this Act certainly provides various agencies that will look to prevent and control water
pollution, the Act lays down various procedures for filing a complaint and the powers of each and
every board. However more needs to be done and the Act should be made more comprehensive,
more participation should be given to the locals and punishments should be made stricter so that it
Acts as a strong deterrence. Above all these more emphasis should be given on the implementation
aspect as just by making laws you cannot control pollution, proper implementation is also required.

Standards, CPCB and SPCB, Consent Mechanism, Control Areas and Restraint

Orders.

Legislation
In terms of recent developments, it is relevant to note that the environmental regulatory authorities
(that is, the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs))
have been ordered by the National Green Tribunal (NGT) to strictly enforce and take into account
the (previously dormant) Comprehensive Environmental Pollution Index (CEPI). CEPI allocates
weightages to various pollutants, ambient pollutant concentrations, receptors (the number of
people affected) and additional high-risk elements. The original CEPI assessment was undertaken in
2009, but the CEPI criteria were updated in 2016 and the final report on CEPI was issued in 2018.
The NGT in 2019 then directly supervised the enforcement of the CEPI criteria by the regulatory
authorities. Industrial clusters are categorised under the CEPI as Polluted Industrial Areas (PIAs),
which are each ranked as one of the following:
 A critically polluted area (CPA).
 A severely polluted area (SPA).
 Other polluted areas (OPAs).
 The CPCB and SPCBs will now be focused on remediating these CEPI areas and seeking
compensation from polluting industries; and any expansion or development of new sites in
these areas will be rejected.

The main environmental laws, including under which various key environmental permits (or
consents) are being issued in India, include the:

 Water (Prevention and Control of Pollution) Act 1974 (Water Act), which also initially
identified the powers, functions and hierarchy of the environmental agencies, the CPCB and
the SPCBs.
 Air (Prevention and Control of Pollution) Act 1981 (Air Act).
 Environment (Protection) Act 1986 (EP Act). This umbrella law enables the central
government to take measures it deems necessary to protect and improve the environment,
and to prevent, control and abate environmental pollution. A wide range of rules and
notifications have been adopted under it, such as the:
 E-Waste (Management) Rules 2016, as amended in 2018 (E-Waste Rules);
 Bio-Medical Waste Management Rules 2016;
 Plastic Waste Management Rules 2016;
 Solid Waste Management Rules, 2016;
 Construction and Demolition Waste Management Rules 2016;
 Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016, as
amended in 2019 (HW Rules);
 Manufacture, Storage and Import of Hazardous Chemicals Rules 1989 (MSIHC Rules);
 Coastal Regulation Zone Notification 2019; and
 Environment Impact Assessment Notification 2006.
 Wild Life (Protection) Act 1972.
 Forest (Conservation) Act 1980.
 Public Liability Insurance Act 1991.
 Biological Diversity Act 2002.
 National Green Tribunal Act 2010.

Regulatory authorities

The key regulatory authorities are the:

 Ministry of Environment, Forests and Climate Change (MoEFCC).
 CPCB.
  SPCBs.
 District Level Authorities (that is, municipal corporations).
 Regulatory enforcement

To what extent do regulators enforce environmental requirements?

There has been an upward trend in terms of regulatory enforcement, which can be explained by
various factors. For instance, various states have started to insist on the installation of continuous
online emissions/effluent monitoring systems, which gives the State Pollution Control Boards
(SPCBs) the necessary and objective information to monitor the compliance of companies in their
jurisdiction. Moreover, the state high courts, the Central Supreme Court, and the various benches
throughout India of the National Green Tribunal (NGT) closely monitor the implementation and
enforcement of environmental laws.

Environmental NGOs

To what extent are environmental non-governmental organisations (NGOs) and other pressure
groups active?

NGOs, think-tanks, and local citizen groups are very active stakeholders in India and readily use the
media, the courts and the NGTs to raise their environmental grievances. This is often effective, since
the judiciary is generally sympathetic to environmental concerns raised in the public interest.
Moreover, the Indian media is also very active and focuses on environmental issues. Interestingly,
judges from the NGT, High Court and the Supreme Court even take up environmental cases suo
moto (that is, on its own motion) based on media coverage of these matters.
Some environmental laws explicitly refer to the rights of citizens in this regard. For instance, the
Maharashtra Non-biodegradable Garbage (Control) Act, 2006 empowers a citizen to register the
offence against any violators of this Act.

Environmental permits

Is there a permitting regime for polluting emissions to land, air and water? Can companies apply for
a single environmental permit for all activities on a site or do they have to apply for separate
permits?

Integrated/separate permitting regime

An integrated permit system is in place to a large extent. For instance, a Consent to Establish (CTE)
and subsequent Consent to Operate (CTO) and their renewals under the Water Act and Air Act can
typically be obtained by submitting a combined consent application to the relevant SPCB.

The E-Waste (Management) Rules 2016 introduce the Extended Producer Responsibility –
Authorisation for Producers, which only requires one centralised and India-wide application with the
CPCB instead of with each SPCB.

Also, to streamline the environmental permit/consent system, and avoid repetitive and/or
conflicting conditions, the CPCB has waived the requirement of having separate CTEs for industrial
units which require an Environmental Clearance (EC). In such cases, the EC will be considered
equivalent to a CTE and no separate CTE will need to be obtained.

Single/separate permits

Depending on the type of activities undertaken by a company, multiple permits may need to be
obtained.

The Ministry of Environment, Forests and Climate Change (MoEFCC) adopted a new method (from
2016) of classifying the industries it regulates and introduced a new category of "white industries".
These white industries are non-polluting industries that no longer need a CTO or an EC under the
Environmental Impact Assessment (EIA) Notification. Instead, they merely need to notify the
relevant SPCB.

Whereas the earlier industry categories (red, orange and green) were essentially determined based
on the size of industries, this new method is based on a Pollution Index (PI) for emissions (air
pollutants), effluents (water pollutants) and hazardous waste generated apart from the consumption
of resources. A PI score is allocated to each industrial sector as follows:

1. Red category: PI score of 60 and above. Table 1 annexed to the notification covers 60 sectors
(for example: asbestos, nuclear power plants, shipbreaking, oil and gas extraction, and so
on).
2. Orange category: PI score of 41 to 59. Table 2 lists 83 types of industries (for example: food
and food processing, printing ink manufacturing, paint blending and mixing, and
pharmaceutical formulations).
3. Green category: PI score of 21 to 40. Table 3 identifies 63 sectors (for example: saw mills,
tyres/rube retreating, polythene and plastic products).
4. White category: PI score up to 20. Table 4 lists 36 types of industries (for example: solar
power generation through solar photovoltaic cells, wind power, and mini hydro-electric
power less than 25 megawatts).

What is the framework for the environmental permitting regime?

Permits and regulator

The key environmental permits, or consents/authorisations as they are referred to in India, must be
obtained from the local State Pollution Control Board (SPCB).

Only in certain cases is a consent/permit or environmental clearance (EC) needed at central level,
from one or more of the following:

1. The CPCB (for example authorisation as a producer under the E-Waste Rules 2016).
2. The Ministry of Environment, Forest and Climate Change (for example, EC under EIA
Notification, 2006, import/export of hazardous waste under the Hazardous and Other Waste
Rules 2016 and so on).
3. Central Ground Water Board (for groundwater extraction related permits)
 4. Petroleum & Explosives Safety Organization (PESO) (permits relating to storage of diesel at
sites for generators).

Length of permit

The SPCBs have some discretion in determining the duration of consents, but there are efforts to
streamline these periods for the various industry categories in each state. Typically:

 An initial CTE is valid for one year (for example, during the construction of a site, but
depending on the scale of the project this could be longer).
 CTOs under the Water and Air Act vary between three to five years.
 Industries are categorised in red, orange, green or white categories, depending on the
pollution index score
 White category industries (practically non-polluting industries) do not need to obtain a CTO.
 Green category industries can generally submit a simplified CTO application. Their initial CTO
in many states are valid for 15 years.
 Initial CTOs for orange categories are typically ten years, and for red categories one or five
years.

Renewal applications are typically granted across industries before 60 to 120 days of expiry of the
consent to operate, assuming there have been no severe non-compliance issues. If there is a non-
compliance issue, SPCBs can revoke the consent to operate and reissue it only after the non-
compliance has been rectified. In such situations, companies often only obtain a one-year CTO, to
ensure close monitoring by the SPCBs and ongoing compliance.

Some states have also adopted an auto-renewal of consents for all categories based on self-
certification if certain criteria are met, such as:

 When there is no increase in the overall production capacity and pollution load.
 If there is only a marginal increase (up to 10%) in capital investment.

Some key waste-management laws, such as the E-Waste Rules and the HW Rules, explicitly refer to
authorisations being valid for five years.

Restrictions on transfer

Consent orders and environmental clearances (obtained under the EIA Notification) are readily
transferable, and a straightforward procedure applies:

 The transferor must provide a written no objection to the relevant regulatory authority.
 The transferee must submit an application, with an undertaking that it will comply with all
the conditions in the consent order.
 Supporting documents must be provided (explaining the underlying reason of the transfer,
change of name, change of management, and so on).

Penalties

Failure to obtain the required consent order will incur penalties. For instance, under the Water Act,
any person who breaches the consent application process is punishable with imprisonment for at
least 18 months, which can be extended to six years, and a fine. Any company operating without a
consent to establish or operate will immediately receive a closure notice from the relevant SPCB.
Under directions from the NGT, the CPCB recently devised a formula to compute environmental
compensation to be levied on the defaulting industry. The formula is based on the anticipated
severity of pollution, the duration of the violation (number of days), the scale of the operation and
the location (for example, proximity to large habitations).

Moreover, the Supreme Court and the state high courts can and do impose exemplary damages for
damage to the environment. For instance, in the Sterlites Industries case (2013), one of the largest
copper smelter plants in India was found to be operating without a valid renewal of its
environmental consent to operate. When assessing the company's liability to pay damages (that is,
for damage caused to the environment during the 15 years it operated without a valid
environmental permit), it reviewed the company's annual report, and determined that 10% of the
profit before depreciation, interest and taxes (PBDIT) had to be paid as compensation, which
amounted to INR1 billion.

The Water Act, Air Act and EP Act all contain specific provisions for offences committed by
companies. Under these Acts, every person who is in charge when an offence is committed, and is
responsible to the company for the conduct of its business, is guilty of the offence and liable to be
prosecuted and punished accordingly. However, a person is not liable if he proves that the offence
was committed without his knowledge, or that he exercised all due diligence to prevent the offence.

Further, if the offence was committed with the consent or connivance, or is attributable to any
neglect by a director, manager, secretary or other officer of the company, the other person is also
guilty of the offence, and liable to be prosecuted.

Importantly, the National Green Tribunal Act, 2010 (NGT Act) contains penalty provisions which are
considerably higher compared to previously adopted environmental laws. Most likely all existing
environmental laws will be amended (at some point) to be aligned with the NGT Act penalty
provisions.

More specifically, section 26(1) of the NGT Act states that a person who fails to comply with an order
or award or decision of the Tribunal is punishable with imprisonment for a term up to three years, or
with a fine up to INR10 crore, or both (one crore is equal to ten million).

If the failure or contravention continues, an additional fine applies up to INR 25,000 for every day
the failure/contravention continues, after conviction for the first failure or contravention.

Section 26(2) of the NGT Act states that if a company fails to comply with any order or award or
decision of the Tribunal, the company is punishable with a fine up to 25 crore rupees. If the failure or
contravention continues, an additional fine applies up to INR100,000 for every day the
failure/contravention continues, after conviction for the first failure or contravention.

The NGT has jurisdiction over all civil cases where a substantial question relating to the environment
is involved, arising out any of the exhaustively enumerated environmental laws specified in Schedule
I to the NGT Act (including the EP Act (and the rules adopted under it), the Water Act, the Air Act,
the Forest Act, the EIA Notification Act, and so on) (section 14(1 NGT Act).
Under section 15(1) of the NGT Act, the NGT can order relief, compensation and restitution in the
following cases:

 Relief and compensation to the victims of pollution and other environmental damage.
 Restitution for property damaged.
 Restitution of the environment.
Further, the NGT can divide the compensation or relief payable under separate heads specified in
Schedule II of the NGT Act, which includes claims:

 Due to harm, damage or destruction to flora, including aquatic flora, crops, vegetables, trees
and orchards.
 Including cost or restoration of account of harm or damage to the environment including
pollution of soil, air, water, land and eco-systems.

What is the regulatory regime for water pollution (whether part of an integrated regime or
separate)?

Regulators

The regulators for water pollution matters are the following:

 State Pollution Control Board (permission to establish and operate).

 Central Ground Water Board (for permission to extract groundwater).
 Municipal Corporations/State Public Works Department (who are responsible for water
supply and sewerage systems).

Prohibited activities

No person must knowingly cause or permit any poisonous, noxious or polluting matter (determined
under standards laid down by the CPCB, or complemented by the standards of the SPCBs) to enter,
directly or indirectly, into any stream, well or sewer, or on land (see the Water Act).

Similarly, a person must not cause or permit any other matter to enter into a stream, which may
(directly or with similar matter) impede the proper flow of the water of the stream, in a manner
leading or likely to lead to a substantial aggravation of pollution due to other causes or its
consequences. These broadly drafted provisions of the Water Act tend to cover a wide range of
activities which may cause or aggravate water pollution.

The Water Act and Air Act also impose a strict information accident reporting and preventing
obligation on industries. If due to an accident or other unforeseen event any poisonous, noxious or
polluting matter is discharged, or is likely to be discharged into a stream, well, sewer, or on land,
which causes or is likely to cause water pollution, the person in charge must immediately notify this
to the relevant State Pollution Control Board (see sections 31 and 32, Water Act.)
Clean-up/compensation

Companies who cause water pollution can be ordered to clean up the pollution caused and pay
compensation to remedy the polluted environment, or to possible victims.

There are various possible approaches. For instance, if a SPCB believes that water or soil pollution is
about to be caused, it can apply to a court for a restraining order. The court can then order the
entity that is about to or that has caused the water pollution to refrain from doing so or to remove
it. If the party fails to act, the court can also authorise the SPCB to remove the water pollution. Any
expenses incurred by the SPCB are then recoverable from the party that has caused the pollution.

Similarly, in an emergency the SPCB can act immediately to prevent, remove or mitigate the water
pollution, and all expenses are recoverable from the person causing or failing to effectively prevent
the water pollution.
Most significantly, the SPCBs have power to issue far-reaching directions, which include:

1. Closure of the company, or at least the part or process of the company that is causing the
pollution (which can extend to the stoppage of an entire manufacturing process, until the
pollution has been addressed).
2. Stopping the electricity or water supply to the company.

These powers are often relied on by the regulatory authorities, particularly when companies fail to
reply or adequately respond to written show cause notices that precede these actions.

Companies can approach courts to obtain a stay order against these closure notices, or can appeal
against directions to the state appellate authority and/or NGT (it has four zonal benches throughout
India).

Penalties

Apart from penalties for not having a valid environmental permit, the Water Act has the following
penalty provisions.

Non-compliance with closure direction. The Water Act and Air Act provide that whoever
fails to comply with a closure direction or stoppage (of electricity and water) direction is liable to
imprisonment for a term of at least one and a half years up to six years and a fine. If the breach
continues, an additional fine up to INR 5,000 for every day of non-compliance can be imposed .

Other offences. The Water Act and the Air Act set out various other offences, such as:
 Failure to provide information to the Pollution Control Boards.
 Failure to notify an accident.
 Knowingly or wilfully making a false statement.
 Wilfully tampering with monitoring equipment.
 They are all punishable with imprisonment for a term up to three months, or a fine up to INR
10,000, or both.

Residuary penalty. A person who breaches the Water Act or the Air Act, or fails to comply with
any order or direction with no specific penalty, is punishable with imprisonment up to three months,
or a fine up to INR10,000, or both. If the failure continues, an additional fine can be imposed up to
INR5,000 per day.

EP Act and the NGT Act. Unlike the Water Act and the Air Act, the EP Act, which is the
umbrella act for the numerous rules adopted under it, such as the HW Rules provides only one type
of punishment. Any breach of the rules under the EP Act is punishable with imprisonment up to five
years, or a fine up to INR100,000, or both.

However, amounts imposed by courts are now significantly higher already. Under the NGT Act, NGTs
have the power to order:

 Relief and compensation to the victims of pollution.

 Restitution of damaged property.
 Restitution of the environment.
These amounts are in addition to amounts payable under the Public Liability Insurance Act 1991.
Moreover, NGTs can divide the compensation payable under the following separate heads as
specified in Schedule II of the NGT Act:

 Death.
 Permanent/temporary disability or other injury or sickness.
 Medical expenses incurred for treatment of injuries or sickness.
 Damages to private property.
 Loss and destruction of any property other than private property.
 Expenses incurred by the government or a local authority in providing relief, air and
rehabilitation to the affected persons, or compensation for environmental degradation and
restoration of the quality of the environment.
 Claims including cost of restoration on account of any harm or damage to the environment,
including pollution of soil, air, water, land and ecosystems.
 Claims on account of any harm, damage or destruction to fauna and aquatic fauna and flora,
crops, vegetables, trees and orchards.
 Loss of business or employment, or both.
 Any other claim arising out of or connected with any activity of handling hazardous
substances.

Most significantly, the NGT Act provides that anyone who fails to comply with any order or award of
the NGT Act is punishable with imprisonment for a term up to three years, or a fine up to INR100
million, or both. If the failure or breach continues, an additional fine can be imposed up to
INR25,000 per day.

The penalty under the NGT Act is even stricter for companies. If a company fails to comply with an
order or award of the NGT, it is liable to a fine up to INR250 million, and an additional fine up to
INR100,000 for each day the breach continues.

Further, the CPCB has recently devised a formula for calculating the environmental compensation to
be levied on the defaulting industry

What is the regulatory regime for water abstraction (whether as part of an integrated regime or
separate)?

Permits and regulator

The Central Ground Water Authority. under the Ministry of Jal Shakti Department of Water
Resources, River Development and Ganga Rejuvenation, is the body responsible for the supervision
of water abstraction.

The regulation of ground water development in notified areas is conducted by district administrative
heads assisted by Advisory Committees under the provisions of section 4 of the EP Act. All issued
pertaining to the granting of "No Objection Certificates" (NOCs) for ground water abstraction will
have to be submitted to the Central Ground Water Authority.

Prohibited activities

Water abstraction is limited in the sense that the grant of a NOC for ground water extraction for
drinking and domestic purposes for infrastructure projects/industries/the mining sector will be
considered only on the production of a completion certificate from the competent authority.
Moreover, a NOC for ground water withdrawal will be considered only in cases where the water
supply department concerned is unable to supply an adequate amount of water in the area.

A NOC will not be granted to industries for the extraction of ground water for construction activities
in the project in critical/over-exploited areas. Similarly, water intensive industries (like packaged
drinking water, tanneries, distilleries, breweries, paper and pulp industries, fertiliser companies,
water parks and amusement centres) will not be allowed to abstract water from overexploited
areas.

For example, owing to the high levels of fluoride present in the groundwater of the 12 districts in
Maharashtra, the National Green Tribunal has now passed an order that prohibits the unauthorised
extraction of the resource for commercial use by dealers and businesses dealing in packaged water.
Earlier the Tribunal had issued notices to the collector of these districts over the rampant and illegal
digging of borewells in these already water-scarce areas.

Compensation

If the licensee of a NOC is not in compliance with a NOC for ground water, then this can lead to the
cancellation or non-renewal of that NOC.

Penalties

Penalties can be imposed under the EP Act in the case of non-compliance in notified areas. A Show
Cause Notice (SCN) or stop work order can be served on the licensee by the SPCB. Subsequently, a
closure notice can be issued, if no response is given to the SCN. If there is failure to comply with the
directions issued, then this can be punishable by a term of imprisonment and/or the penalties
specified under the EP Act, which can result in either a prison term of up to five years, or a fine of up
to INR100,000, or both.

Citizen Suit and Access to Environmental Information

Citizen Suit Provision under Various Environmental Legislations

INTRODUCTION
Humans have developed and have been developing at a very fast pace but with this pace humans
have forgotten the importance of nature is their lives. Environment is the wellspring of life on earth
like water, air, soil, etc., and determines the presence, development and improvement of humanity
and all its activities. The concept of ecological protection and preservation is not new. It has been
intrinsic to many ancient civilizations. Ancient India texts highlights that it is the dharma of each
individual in the society to protect nature and the term ‘nature’ includes land, water, trees and
animals which are of great importance to us.

DEFINATION
“The word “environment” relates to surroundings. It includes virtually everything. It can be can
defined as anything which may be treated as covering the physical surroundings that are common to
all of us, including air, space, land, water, plants and wildlife ”

“According to the Webster Dictionary, it is defined as the “Aggregate of all the external condition
and influences affecting the life and development of an organism.”
“The Environment (Protection) Act, 1986, Section 2(a) environment “includes water, air and land and
the inter- relationship which exists among and between water, air and land, and human beings,
other living creatures, plants, micro-organism and property.”

NEED FOR ENVIRONMENTAL LAWS

In the hour of continuous industrialization and globalization, no one can overlook the damage which
is being caused Day to day innovation and advancement of technology, apart from development
additionally expands the risk to human life. Accordingly, there arises an intense and an acute need of
the law to keep pace with the need of the society along with individuals. So now the question of
environmental protection is a matter of worldwide concern, it is not confined to any country or
territory.

LIST OF ENVIRONMENTAL LAWS IN INDIA

 Air (Prevention and Control of Pollution) Act, 1981
 Biological Diversity Act, 2002
 Environment (Protection) Act, 1986
 Forest Conservation Act, 1980
 Indian Forest Act, 1927
 National Green Tribunal Act, 2010
 Protection of Plant Varieties and Farmers’ Rights Act of 2001
 Public Liability Insurance Act, 1991
 The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006
 Water (Prevention and Control of Pollution), 1974
 Wild Life (Protection) Amendment Act, 2002
 Wildlife Protection Act of 1972
 Noise Pollution rule
 Hazardous waste Handling and management act, 1989

THE CONSTITUTIONAL ASPECTS ON ENVIRONMENTAL LAW

The Indian Constitution is amongst the few in the world that contains specific provisions on
environment protection. The chapters directive principles of state policy and the fundamental duties
are explicitly enunciated the nation commitment to protect and improve the environment. It was
the first time when responsibility of protection of the environment imposed upon the states through
Constitution (Forty Second Amendment) Act, 1976.

Article 48-A the provision reads as follows: “The State shall endeavor to protect and improve the
environment and to safeguard the forest and wildlife of the country.”

The Amendment also inserted Part VI-A (Fundamental duty) in the Constitution, which reads as
follows:

Article 51-A (g) “It shall be duty of every citizen of India to protect and improve the natural
environment including forests, lakes, and wildlife and to have compassion for living creature.”

In Sachidanand Pandey v. State of West Bengal, the Supreme Court observed “whenever a problem
of ecology is brought before the court, the court is bound to bear in mind Article 48-A and

Article 51-A (g).

CITIZEN SUIT PROVISION- MEANING

A citizen suit is a lawsuit by a private citizen to enforce a statute. Citizen suits are
particularly common in the field of environmental law. Citizen suits come in three forms.
First, a private citizen can bring a lawsuit against a citizen, corporation, or government body
for engaging in conduct prohibited by the statute. Second, a private citizen can bring a
lawsuit against a government body for failing to perform a non-discretionary duty. “This
third type of citizen suit is analogous to the common law tort of public nuisance”

CITIZEN SUIT PROVISION IN INDIA

The legal remedies available to the citizens with regards to Water pollution in India are limited as
compared to countries like US, UK, Canada and Australia and are still in a developing phase. It was in
the year 1986 after the coming of Environmental protection act that a citizen got the right to file a
complaint under section 19 of the EPA and prosecute the polluter. But this is subjected to restriction
that a pollution control board sample is only admissible by the court and the sample given by citizen
unlike in U.S. was not admissible. In India, therefore you have to first complain to the PCBs (pollution
control board) and cannot directly approach the court. Moreover a 6-month prior notice has to be
given before filing the suit which gives ample time to the polluter to get way with the crime. By
amendments later in the water act 1974 it has been made mandatory for the PCBs to disclose all
relevant information which is needed by person filing suit against any pollutant.

The Environment Protection Act, 1986-Though there is a host of legislation in India aimed at
protecting the environment from pollution and maintaining the ecological balance, the environment
has not so far been considered in its totality. The Environment 106 (Protection) Act, 1986, enacted
under Art. 253 of the Constitution of India to implement the decisions made at the United Nations
Conference on Human Environment held at Stockholm, 1972 was expected to fill the lacuna and
provide a blue print for a progressive policy for protecting the ecosystem. The Act seeks to
supplement the existing laws on control of pollution by enacting a general legislation for
environmental protection and to fill the gaps in regulations of major environmental hazards.

Citizen suit provision under the Environment Protection Act, 1986 – Until the enactment of the
Environment Act, the power to prosecute under Indian environmental laws belonged exclusively to
the government. The citizens‟ suit provision in the Environment Act expands the concept of locus
standi in environmental prosecutions.

Similar provisions allowing citizens participation in the enforcement of pollution laws are now found
in Sec.43 of the Air Act(as amended in 1987) and Sec.49 of the Water Act(as amended in 1988). Sec.
19[13] of the Environment Act provides that any person, in addition to authorized government
officials, may file a complaint with a court alleging an offence under the Act. However, the person
must have given notice of not less than 60 days of the alleged offence and the intent to file a
complaint with the government official authorized to make such complaints. The citizens‟ suit
provision appears to give the public significant powers to enforce the Environment Act. However,
some critics are of the view that during the 60 days’ notice period required for the government to
decide whether to proceed against the alleged violation, the offending industry has time to clean up
traces of the offence and prepare itself for the collection of samples. Further, the government may
file a complaint but does not pursue prosecution diligently. There are no rules which require the
publishing of information by polluters. The Act allowed, but does not require, the Central the Act
from any person, officer, State Government or other authority. The citizens‟ suit provision may
become an effective enforcement tool if industries were required to make mandatory public reports
concerning their pollutant emissions and discharges.

DIFFERENCE BETWEEN PUBLIC INTEREST LITIGATION (PIL) AND

CITIZEN SUIT PROVISION
The basic difference between PIL and the citizen suit provision is that a PIL is a much broader
concept that the citizen suit provision also citizen suit provision is governed by the respective acts
and is not a matter of right while moving to the High Court or the Supreme Court cannot be barred.

Public Interest Litigation (PIL) or Social Action Litigation (SAL) is permitted by the Supreme Court and
High Courts under writ jurisdiction at the instance of public-spirited citizens for the enforcement of
constitutional and other legal rights of any person or groups of persons who because of their
disadvantageous position are unable to approach the court for relief. The Supreme Court under
Article 32 and the High Courts under Article 226 can be moved by any public-spirited citizen or by
NGOs for the prevention of environmental pollution.

The Environment (Protection) Act, provided for the first time in 1986, citizen suit provisions in the
lower courts. Under Section 19 of the Act, a citizen may prosecute a polluter by filing a complaint to
a Judicial Magistrate Court. It can be done after giving 60 days’ notice to the State Pollution Control
Board of his or her intention to the file a case. Hitherto, only the government could file a case. Later,
similar provisions have been provided under Section 43 of the Air Act, 1981 and Section 49 of the
Water Act, 1974, by way of amendments. All these provisions make it mandatory for the pollution
control boards to disclose all relevant internal reports to a person who intends to prosecute the
polluter.

SITUTION BEFORE THE INTRODUCTION OF CITIZEN SUIT

PROVISION IN ENVIRONMENTAL LEGISLATIONS
The concept of citizen suit provision as stated earlier was not a part of the original Act which was
passed by the parliament. Although it was felt that the board had been given way too much power
by the legislature and people who are ultimately affected must have a locus standi in such cases.

Before the legislature passed the amendment including the provision of citizen suit provision various
there alternatives were available to the public to raise an action in case of environment pollution.

The remedies available in India for environmental protection comprise of tortuous as well as
statutory law remedies. The tortuous remedies available are trespass(It connotes failure to exercise
the care that a reasonably prudent person would exercise in like circumstances), nuisance, strict
liability (The rule enunciated in Rylands v. Fletcher by Blackburn J. is that the person who for his own
purpose brings on his land and collects and keeps there anything likely to be a mischief, if it escapes,
must keep it as its peril, and if he does not do so is prima facie even though, he will be answerable
for all the damage which is the natural consequence of its escape. The doctrine of strict liability has
considerable utility in environmental pollution cases especially cases dealing with the harm caused
by the leakage of hazardous substances) and negligence.

The judgment of the Supreme Court in instant case is a land mark in the history of judicial activism in
upholding the social justice component of the rule of law by fixing liability on statutory authorities to
discharge their legal obligation to the people in abating public nuisance and making the
environmental pollution free even if there is a budgetary constraints., J. Krishna Iyer observed that,”
social justice is due to and therefore the people must be able to trigger off the jurisdiction vested for
their benefit to any public functioning.” Thus, he recognized PIL as a Constitutional obligation of the
courts.

 an activity under area 133, Criminal Procedure Code, [Link]

 and activity brought under the Section 268 for open irritation, under Indian Penal Code,1860
 A writ petition can be filed under Article 32 in the Supreme Court of India or under Article
226 in the High Court.

By, kamran zaffar

Kashmir law college

9622817330

(Don’t rely completely on notes)

Unit III
Environmental Legislations including Redressal Mechanism
The Biological Diversity Act, 2003
Introduction

Representing in the truest essence, the sustenance of all life on earth, biodiversity stands to be the
pedestal supporting the coexistence of all varieties of living organisms from several sources which
include the terrestrial, marine and all aquatic ecosystems. Biodiversity is also a foundation for
traditional and modern medicines, a source of food, provides raw materials for trade and business,
etc.

Therefore, biodiversity loss would have negative repercussions on the lives of every species existing
on earth, causing an imbalance in the ecosystem which would eventually lead to the destruction of
the natural environment. Being one of the greatest diverse countries in the world and holding a
global record for being home to the most unique species, India has experienced threats and semi-
destruction of its biodiversity due to out bursting population, overutilization and exploitation of
resources, climate change, habitat loss due to human development, increasing pollution levels and
so on.

Before the Biological diversity Act, 2000, India had several environmental legislations put to work
but certainly a void existed which required the enactment of this Act in 2002. India had signed
the Convention on Biological Diversity at Rio de Janeiro providing a framework and foundation for
sustainable development and preservation of its biodiversity with a lot of focus on natural resources.
Following this ten years later the Biological Diversity Act, 2002 was enacted .

Biological diversity Act, 2002

India saw a transformation of its closed economy into an open economy, post-1990. Biopiracy
thereafter, stood unguarded with no stringent legislation protecting the overexploitation and piracy
of resources. This further saw the formation of a civil society group appointed to formulate a
National Biodiversity strategy and plan. However, this wasn’t accepted and the government itself
articulated a legal framework and draft known as the Biodiversity Bill, 2000, based on which this Act
was passed by the Lok Sabha on 2nd December 2002 and Rajya Sabha on 11th December 2002. It
had finally received the Presidential assent on 5th February 2003.

The Biological Diversity, as federal legislation, was a mere attempt of India to uphold the objectives
put forth by the United Nations Convention on Biological Diversity (CBD) 1992, giving immense
importance to the rights of a state over its resources.

This Act broadly sets forth to protect and conserve the biological diversity, control the utilization of
resources, and maintain equality in the distribution of its resources and benefits arising from
it. Section 8, sub-Section (1) and (3) of this Act, puts forth the provision of establishing a National
Biodiversity Authority in Chennai.

Objective

The Act in general aims in conserving the Biological Diversity, maintaining and controlling the proper
use of its components, ensuring equitable distribution of benefits derived from such utilization. The
mentioned objectives of the Act provide for a safeguard of traditional knowledge, prevent biopiracy,
prohibit people from claiming patents without the government’s permission, etc .

The facets of the objective of aiming to conserve Biological diversity is showcased by Chapter IX of
this Act, especially with Sections 36, 37 and 38 which relates to developing national plans and
programmes for the conservation of biodiversity, powers given to state government to notify and
preserve areas of biodiversity, and with the authority of the Central Government to notify species
that are dangerously endangered, on the verge of extinction, threatened species, prohibiting their
collection and so on. While sustainable use of its component would indicate towards regularising the
use of natural resources and not exhausting it.

Section 21 of the Act determines the provision of benefit sharing. It aims to acquire equitable
sharing of benefits emanating from the accessed biological resources, its by-products, knowledge,
and practice related to it as per the set terms and conditions between the person applying for
acquiring such benefits and the local bodies involved.

Important Provisions

The Biological Diversity Act puts forth definitions, principles, appointed authorities, procedures,
mechanisms for conservation, access benefits, etc, all related to biodiversity. It also mentions an
institutional structure to be established for the same purpose.

Conservation Provisions
Section 36 talks about the role of the Central government in developing national strategies and plans
for conservation purposes. The Central government has responsibilities such as:

 It is duty-bound for formulating national strategies, plans and programmes to conserve and
uphold the sustainable use of biological diversity.
  If any area rich in biological diversity or such resources seems to be facing threats then it is
the central government’s responsibility of notifying the respective state government and
asking them to take appropriate steps to prevent it.
 Composing sectoral and cross-sectoral plans and policies, which are practicable in the
notified environment on the foundation of integration of conservation and the sustainable
use of biological diversity.
 The central government has to take measures for assessing the harmful effects of upcoming
projects on biodiversity and to either prevent it or come up with techniques of diminishing
such effects.
 The central government must aspire to protect the traditional knowledge holders and their
knowledge with methods including registration of such knowledge at the local, state or
national levels, and other measures necessary for protection and so on.

Section 37 of the Act involves the declaration of Biodiversity Heritage Sites with regard to which the
state government is required to notify about the areas of biodiversity heritage in the Official Gazette
under this Act. It proceeds to protect the area rich with biodiversity in its natural surroundings. The
biodiversity-rich landscape and ecosystems brought under already legally protected areas such as
National Parks and Wildlife Sanctuaries in a method similar to that of the declaration of Eco-sensitive
areas as per the Environment Protection Act (1986). The Section also puts the responsibility on the
state government to compensate people or sections of people economically affected by such
declaration.

Without any sort of prejudice, Section 38 of the Act requires the Central Government, in deliberation
with the concerned State Government, notifying from time to time about species that are on the
verge of extinction or threatened species and prohibit its collection thereof for any trade purpose
and put to action appropriate steps for the preservation of such species. Whereas Section
39 empowers the Central Government to designate repositories for biological material to be kept in
safe custody.

But again under Section 40 of the act, the Central Government with regard to the National
Biodiversity Authority by notification in the Official Gazette can make declarations of the Act not
applying to particular items, including biological resources normally the commodities.

In the case of Environment Support Group v. National Biodiversity Authority, An appeal was made
to declare Section 40 of the Biological Diversity Act, 2002 illegal and unconstitutional as serious
prejudice was likely to be caused which could cause jeopardy to the national interest and
biodiversity of certain species. It wanted to draw the attention of authorities towards public
agricultural universities indulging in criminal biopiracy of local varieties of eggplant.

The petitioners also highlighted that they had got 18 critically endangered plants among its 190
plants as normally traded communities. The petition also argued that Section 40 of the Biodiversity
Act, 2002 deemed to allow arbitrary and unfettered trade of India’s biological wealth leading to
extensive bio-piracy. Although the National Biodiversity Board and Karnataka Biodiversity Board had
filed a criminal complaint of biopiracy before the High Court of Karnataka, the petition filed for
criminal proceedings in a relevant ruling of the High Court of Karnataka dismissed petitions and
quashed criminal prosecution of the respondents who had been accused serious criminal acts of
biopiracy by the National Biodiversity Authority and Karnataka State Biodiversity Board.

The biodiversity authorities at the national and state levels

Section 8 lays down the provision of the establishment of the National Biodiversity Authority at the
national level whereas Section 22 does the same for state biodiversity boards at the state level.
Further Section 22(2) does not allow the State Biodiversity Board to be constituted for a Union
territory. The National Biodiversity Authority shall exercise the powers and perform the functions of
a State Biodiversity Board for that Union territory: Provided that in relation to any Union territory,
the National Biodiversity Authority may delegate all or any of its powers or functions under this
subSection to such person or group of persons as specified by the Central Government.

The chairperson of the National Biodiversity Authority presides over the meetings and all questions
are decided by the votes of all members present and voting. As per Section 13, the National
Biodiversity Authority can form a number of committees as required for the effective and efficient
discharge of its duties and functions under the Act. Such a committee should also choose people
who are not the members of the National Biodiversity Authority, as they might have the right to
attend the meetings of the committee and take part in the proceedings but shall not have the right
to vote.

Section 19 of the Act puts forth that any person wanting to obtain any biological resource originating
in India or information relating to it, for research or for commercial purposes or transfer the results
of such research related to biological resources occurring or obtained from India, are required to
make an application and payment of prescribed fees. Also, as per 19(2) any person applying for
patent or intellectual property protection whether in India or outside India based on any invention,
research, knowledge, or study originating in India have to make an application to the biodiversity
authority and wait for its approval.

In the case of Akb Jagannath Nag v. Union Of India & Ors, it was appealed that the petitioner had
intellectual property rights in terms of Section 6 and Section 19(2) of the Biological Diversity Act,
2002 and concerned Rules which were in his favour. Therefore, such approval by the concerned
Authority under the Biological Diversity Act would clearly come in the way of the order criticised
before the learned Single Judge. The order passed by the Controllers and Patents and Designs as
per Section 15 of the Patents (Amendment) Act, 2005 was appealable in terms of Section 117A of
the Patents Act, 1970 as amended in 2005. If there was an exercise of wrong jurisdiction, excessive
authority during passing such order, the same could be challenged before the Appellate Authority.

Based on this the appellant had interfered with the order passed by the Controllers of Patents and
Designs as well as the learned Single Judge. If the present approval under Section 6 of the Biological
Diversity Act seemed to change the entire scenario then it had to be brought under the notice of the
single learned judge by the way of review. Therefore, it was held that it would not be just to point
out faults with either the order of the Controllers of Patents and Designs or the order of the learned
Single Judge. This appeal was disposed of with an application for stay given to the appellant with the
choice of option for approaching the learned Single Judge for review of the order of the Appellate
Authority as indicated.

Functions

Some of whose functions are:

1. Prohibiting a person claiming a patent over biodiversity or related knowledge, study, or

research without prior approval and permission of the Indian Government.
2. The State Biodiversity Board advises the State Government, according to any guidelines
issued by the Central Government, on matters relating to the conservation of biodiversity,
sustainable use of its components, and benefit-sharing.
 3. The State Biodiversity Board performs functions as required by the Act or prescribed by the
State government.
4. Conservation of sustainable use of biological resources including habitat and species
protection (EIP) of projects, integration of biodiversity, formulating plans, and policies of
various Departments and Sectors.
5. The National Biodiversity Authority has to regulate activities in accordance with Sections 3,
4, and 6 of the Act.
6. The National Biodiversity Authority, on behalf of the Central Government, could take steps
for opposing granting of intellectual property rights in any country outside India related to
any biological resource obtained from India or knowledge about such biological resource
which is derived from India.

Offences and penalties

Put forth by Section 58, offences under this Act are cognizable and non-bailable. Except for the
Central Government or any authority authorized by the government or any benefit claimant with his
intention to make a complaint, no court shall take cognizance of any offence under this Act or rules
as per Section 61 of the Act. No suit, prosecution or other legal proceedings shall lie against the
Central Government or any officer of the Central Government or the State Government or any
member, officer or employee of the National Biodiversity Authority or the State Biodiversity Board
with regard to an action done in good faith as per Section 54 of the Act. Provisions of this Act even
being inconsistent with any other law in force shall yet have effect and put to work as laid
under Section 59.

Offences punishable with imprisonment for a term which may extend to five years or fine
which may extend to ten lakh rupees or both:

1. In contravention to the provisions of Section 3, if a non-Indian, an Indian or corporate body

with foreign participation initiates biodiversity-related activities without prior approval of
the National Biodiversity Authority.
2. In contravention to the provisions of Section 4, any person whether a citizen or not, delivers
results of any research related to any biological resources for monetary gain to a non-
Indian.
3. In contravention to the provisions of Section 6, any person making an application for an
Intellectual Property Right of an invention based on any research on a biological resource
obtained from India without previous approval of the National Biodiversity Authority.

Offences punishable with imprisonment for a term which may extend to three years, or with
fine which may extend to five lakh rupees or both:

1. Contravening Section 7 of the Act, if any citizen of India excluding Vaids and Hakims who are
practising indigenous medicines, acquires any biological resource for commercial utilization
or bio survey without giving prior notification to the State Biodiversity Board.
2. Contravening Section 24 sub Section (1), if any citizen of India or a corporate organization
registered in India, aims to undertake any activity of obtaining biological resources for
commercial work and does not give prior intimation as is prescribed by the State
Government to the State Biodiversity Board.
A person going against any direction given by the Central Government, the State Government, the
National Biodiversity Authority or the State Biodiversity Board for which no punishment has been
specified under the Act, then he/she shall be punished with a fine which may extend to one lakh
rupees, in case of a subsequent offence extending to two lakh rupees which with continuous
contravention incur an additional fine two lakh rupees everyday laid by Section 56 of the Act.

Shortcomings of the Act

Along with several positive and worthy features, the Act also has several flaws and somewhere
leaves a void. One of the major flaws is that emphasis on preventing profit-sharing from the
commercial use of the biological resources rather than provisions for efficient conservation. One of
the reasons for laying this act was to prevent bio-piracy by the developed nations but this did not
give an opportunity for neglecting the other major aim of protecting biodiversity.

This legislation does not act as an umbrella and overlooks its possibilities of harmonizing with prior
existing legislation. Neither does it lay down guidelines for the assignment of non-monopoly rights
nor for assessing contributions made by firms, local communities, or individual inventions. The basic
provision of integrating the communities and nation is weak.

The act doesn’t even give immediate rights-holders the authority of defending their rights in the way
that it weaponizes the Indian state to fight against biopiracy or even with rights equivalent to that
provided to patent holders or applicants. One of the main problems also stands to be no legal
protection given to the information recorded in the People’s Biodiversity Register. This register is
open to entities wanting to exploit resources of a particular area. Such documentation has to be
regulated by rigorous monitoring in order to ensure the benefits being shared.

Suggestions

Few suggestions for the better implementation of the Biodiversity Act, 2002 and ensuring efficient
work with regards to its provisions:

 As seen most of the time statutory legislation and Acts even after put to force are not
implemented properly. Half of the time, the main purpose of such legislation is left behind
and no improvement takes place. Thereafter, even in this case, with years of worsening
pollution levels, untreated sewage, chemical pollutants, factory wastes, etc have been
dumped in major Indian rivers such as Ganga, Yamuna, Godavari, Cauvery, etc, main water
sources, leaving it tremendously polluted. Proper enforcement of this Act would certainly
help in reducing such pollution levels.
 Even if certain boards and committees are formed to look after biodiversity if each ministry
works hand in hand, monitors activities, makes themselves aware of environmental harms
caused by their actions then such a hurdle can be crossed easily since everyone gets
accountable for their actions and feels more responsible towards protecting the ecosystem.
Working together, cooperatively can do away with a lot of problems.
 Since no specifications are put forth regarding official relations between the Biodiversity
management committees and local bodies this could often lead to common disputes and
conflicts. The introduction of a special committee would help in the unification of the
numerous local bodies and institutions so that they could work together in the prescribed
time ahead.
 Whereas on one side it talks of the nation or state’s sole right towards its innovations,
resources, its by-products, etc, it lays no provision and protection for genetic resources
 leaving it to be exploited by anyone. Leaving out human genetic material from the purview
of the act could also lead to the problem of the ‘cloning crisis.’
 It is important for the government to continuously notify and be notified of special places by
awarding them special status and protection to biodiversity-rich areas by declaring them as
national parks, wildlife sanctuaries, etc.

Conclusion

Resources or traditional knowledge that are not assigned to any sort of private body or entity
through patents or grant of the state is considered to be available for free. Even after such
provisions losses have been faced year after year. Even though several provisions of this Act are
progressive, India is way down the ladder in its trial to protect biodiversity. Awareness has to be
created amongst the local communities on this biodiversity Act. Indian biodiversity indeed requires
good protection by putting its legal framework and policies to action. The time period of 2014 to
2017 saw a 7.8% increase in the number of threatened and endangered species. The purpose of the
Biodiversity Act became the reason for debates. The Act being implemented on time could lead to
preventing such a scenario becoming the reason for an argument.

The definition of biological has to be broadened to prevent any sort of exploitation as it does not
provide an all-inclusive structure for conservation and feasible use of biological and genetic
resources. It is one of the oldest yet current challenges faced by the country as it is widely accepted
that the basic framework of the Act involves problems. Incase of Intellectual Property Rights, it is
considered to be facilitating commercialization rather than truly accrediting and empowering local
communities.

The news of the NBA headquarters losing almost 10,000 crores annually against foreign companies
invited rage from the people as if it had been implemented properly with regard to laid guidelines
it could have been used for conservation of forests, wildlife, other bio-resources, etc. Time and effort
results in proper change.

Therefore, it is important for the government and every human to take efforts in their own ways to
effectuate and put the Act to work for getting the desired results. A kind of network and integration
of the civil society associations, local bodies, farmers, scientific institutions could indeed help in
better implementation of the Act.

National Green Tribunal Act, 2010

What is National Green Tribunal (NGT)?

 It is a specialised body set up under the National Green Tribunal Act (2010) for effective and
expeditious disposal of cases relating to environmental protection and conservation of
forests and other natural resources.
 With the establishment of the NGT, India became the third country in the world to set up a
specialised environmental tribunal, only after Australia and New Zealand, and the first
developing country to do so.
 NGT is mandated to make disposal of applications or appeals finally within 6 months of filing
of the same.
  The NGT has five places of sittings, New Delhi is the Principal place of sitting and Bhopal,
Pune, Kolkata and Chennai are the other four.

Structure of NGT

 The Tribunal comprises of the Chairperson, the Judicial Members and Expert Members. They
shall hold office for term of five years and are not eligible for reappointment.
 The Chairperson is appointed by the Central Government in consultation with Chief Justice
of India (CJI).
 A Selection Committee shall be formed by central government to appoint the Judicial
Members and Expert Members.
 There are to be least 10 and maximum 20 full time Judicial members and Expert Members in
the tribunal.

Powers & Jurisdiction

 The Tribunal has jurisdiction over all civil cases involving substantial question relating to
environment (including enforcement of any legal right relating to environment).
 Being a statutory adjudicatory body like Courts, apart from original jurisdiction side on filing
of an application, NGT also has appellate jurisdiction to hear appeal as a Court (Tribunal).
 The Tribunal is not bound by the procedure laid down under the Code of Civil Procedure
1908, but shall be guided by principles of 'natural justice'.
 While passing any order/decision/ award, it shall apply the principles of sustainable
development, the precautionary principle and the polluter pays principle.
 NGT by an order, can provide
 relief and compensation to the victims of pollution and other environmental damage
(including accident occurring while handling any hazardous substance),
 for restitution of property damaged, and
 for restitution of the environment for such area or areas, as the Tribunal may think fit.
 An order/decision/award of Tribunal is executable as a decree of a civil court.
 The NGT Act also provides a procedure for a penalty for non-compliance:
1. Imprisonment for a term which may extend to three years,
2. Fine which may extend to ten crore rupees, and
3. Both fine and imprisonment.
 An appeal against order/decision/ award of the NGT lies to the Supreme Court, generally
within ninety days from the date of communication.
 The NGT deals with civil cases under the seven laws related to the environment, these
include:
1. The Water (Prevention and Control of Pollution) Act, 1974,
2. The Water (Prevention and Control of Pollution) Cess Act, 1977,
3. The Forest (Conservation) Act, 1980,
4. The Air (Prevention and Control of Pollution) Act, 1981,
5. The Environment (Protection) Act, 1986,
6. The Public Liability Insurance Act, 1991 and
7. The Biological Diversity Act, 2002.
 Any violation pertaining to these laws or any decision taken by the Government under these
laws can be challenged before the NGT.

Strengths of NGT
 1. Over the years NGT has emerged as a critical player in environmental regulation, passing
strict orders on issues ranging from pollution to deforestation to waste management.
2. NGT offers a path for the evolution of environmental jurisprudence by setting up an
alternative dispute resolution mechanism.
3. It helps reduce the burden of litigation in the higher courts on environmental matters.
4. NGT is less formal, less expensive, and a faster way of resolving environment related
disputes.
5. It plays a crucial role in curbing environment-damaging activities.
6. The Chairperson and members are not eligible for reappointment, hence they are likely to
deliver judgements independently, without succumbing to pressure from any quarter.
7. The NGT has been instrumental in ensuring that the Environment Impact Assessment
process is strictly observed.

Challenges

1. Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept out of
NGT’s jurisdiction. This restricts the jurisdiction area of NGT and at times hampers its
functioning as crucial forest rights issue is linked directly to environment.
2. The NGT decisions are being challenged in various High Courts under Article 226 (power of
High Courts to issue certain writs) with many asserting the superiority of a High Court over
the NGT, claiming ‘High Court is a constitutional body while NGT is a statutory body’.” This is
one of the weaknesses of the Act as there is lack of clarity about what kind of decisions can
be challenged; even though according to the NGT Act, its decision can be challenged before
the Supreme Court.
3. Decisions of NGT have also been criticised and challenged due to their repercussions on
economic growth and development.
4. The absence of a formula based mechanism in determining the compensation has also
brought criticism to the tribunal.
5. The decisions given by NGT are not fully complied by the stakeholders or the government.
Sometimes its decisions are pointed out not to be feasible to implement within a given
timeframe.
6. The lack of human and financial resources has led to high pendency of cases - which
undermines NGT’s very objective of disposal of appeals within 6 months.
7. The justice delivery mechanism is also hindered by limited number of regional benches.

Important Landmark Judgements of NGT

 In 2012, POSCO a steelmaker company signed a MoU with the Odisha government to set up
steel project. NGT suspended order and this was considered a radical step in favour of the
local communities and forests.
 In 2012 Almitra H. Patel vs. Union of India case, NGT gave judgment of complete prohibition
on open burning of waste on lands, including landfills – regarded as the single biggest
landmark case dealing with the issue of solid waste management in India.
 In 2013 in Uttarakhand floods case, the Alaknanda Hydro Power Co. Ltd. was ordered to
compensate to the petitioner – here, the NGT directly relied on the principle of ‘polluter
pays’.
 In 2015, the NGT ordered that all diesel vehicles over 10 years old will not be permitted to
ply in Delhi-NCR.
  In 2017, the Art of Living Festival on Yamuna Food Plain was declared violating the
environmental norms, the NGT panel imposed a penalty of Rs. 5 Crore.
 The NGT, in 2017, imposed an interim ban on plastic bags of less than 50-micron thickness in
Delhi because “they were causing animal deaths, clogging sewers and harming the
environment”.

Conclusion

There is need for more autonomy and widen NGT’s scope for effective protection of environment in
balance with human developmental activities.

Environmental Impact Assessment

Introduction

 Environmental Impact Assessment (EIA) is a process of evaluating the likely environmental

impacts of a proposed project or development, taking into account inter-related socio-
economic, cultural and human-health impacts, both beneficial and adverse.
 UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the
environmental, social and economic impacts of a project prior to decision-making. It aims to
predict environmental impacts at an early stage in project planning and design, find ways
and means to reduce adverse impacts, shape projects to suit the local environment and
present the predictions and options to decision-makers.
 Environment Impact Assessment in India is statutorily backed by the Environment
Protection Act, 1986 which contains various provisions on EIA methodology and process.

History of EIA in India

 The Indian experience with Environmental Impact Assessment began over 20 years back. It
started in 1976-77 when the Planning Commission asked the Department of Science and
Technology to examine the river-valley projects from an environmental angle.
 Till 1994, environmental clearance from the Central Government was an administrative
decision and lacked legislative support.
 On 27 January 1994, the then Union Ministry of Environment and Forests, under the
Environmental (Protection) Act 1986, promulgated an EIA notification making Environmental
Clearance (EC) mandatory for expansion or modernisation of any activity or for setting up
new projects listed in Schedule 1 of the notification.
 The Ministry of Environment, Forests and Climate Change (MoEFCC) notified new EIA
legislation in September 2006.

1. The notification makes it mandatory for various projects such as mining, thermal power
plants, river valley, infrastructure (road, highway, ports, harbours and airports) and
industries including very small electroplating or foundry units to get environment clearance.
2. However, unlike the EIA Notification of 1994, the new legislation has put the onus of
clearing projects on the state government depending on the size/capacity of the project.

The EIA Process

EIA involves the steps mentioned below. However, the EIA process is cyclical with interaction
between the various steps.

 Screening: The project plan is screened for scale of investment, location and type
of development and if the project needs statutory clearance.
 Scoping: The project’s potential impacts, zone of impacts, mitigation possibilities
and need for monitoring.
 Collection of baseline data: Baseline data is the environmental status of study
area.
 Impact prediction: Positive and negative, reversible and irreversible and
temporary and permanent impacts need to be predicted which presupposes a good
understanding of the project by the assessment agency.
 Mitigation measures and EIA report: The EIA report should include the
actions and steps for preventing, minimizing or by passing the impacts or else the level
of compensation for probable environmental damage or loss.
 Public hearing: On completion of the EIA report, public and environmental groups
living close to project site may be informed and consulted.
 Decision making: Impact Assessment Authority along with the experts consult the
project-in-charge along with consultant to take the final decision, keeping in mind EIA
and EMP (Environment Management Plan).
 Monitoring and implementation of environmental management
plan: The various phases of implementation of the project are monitored.
 Assessment of Alternatives, Delineation of Mitigation Measures and
Environmental Impact Assessment Report: For every project, possible
alternatives should be identified, and environmental attributes compared. Alternatives
should cover both project location and process technologies.

1. Once alternatives have been reviewed, a mitigation plan should be drawn up for the
selected option and is supplemented with an Environmental Management Plan (EMP) to
guide the proponent towards environmental improvements.

 Risk assessment: Inventory analysis and hazard probability and index also form
part of EIA procedures.
Stakeholders in the EIA Process

 Those who propose the project

 The environmental consultant who prepare EIA on behalf of project proponent
 Pollution Control Board (State or National)
 Public has the right to express their opinion
 The Impact Assessment Agency
 Regional centre of the MoEFCC
Salient Features of 2006 Amendments to EIA Notification

 Environment Impact Assessment Notification of 2006 has decentralized the

environmental clearance projects by categorizing the developmental projects in two
categories, i.e., Category A (national level appraisal) and Category B (state level
appraisal).

2. Category A projects are appraised at national level by Impact Assessment Agency (IAA) and
the Expert Appraisal Committee (EAC) and Category B projects are apprised at state level.
3. State Level Environment Impact Assessment Authority (SEIAA) and State Level Expert
Appraisal Committee (SEAC) are constituted to provide clearance to Category B process.
 After 2006 Amendment the EIA cycle comprises of four stages:

1. Screening
2. Scoping
3. Public hearing
4. Appraisal

 Category A projects require mandatory environmental clearance and thus they do not
undergo the screening process.
 Category B projects undergoes screening process and they are classified into two
types.

1. Category B1 projects (Mandatorily requires EIA).

2. Category B2 projects (Do not require EIA).

 Thus, Category A projects and Category B, projects undergo the complete EIA process
whereas Category B2 projects are excluded from complete EIA process.
Importance of EIA

 EIA links environment with development for environmentally safe and sustainable
development.
 EIA provides a cost effective method to eliminate or minimize the adverse impact of
developmental projects.
 EIA enables the decision makers to analyse the effect of developmental activities on
the environment well before the developmental project is implemented.
 EIA encourages the adaptation of mitigation strategies in the developmental plan.
 EIA makes sure that the developmental plan is environmentally sound and within the
limits of the capacity of assimilation and regeneration of the ecosystem.

Shortcomings of EIA Process

 Applicability: There are several projects with significant environmental impacts that
are exempted from the notification either because they are not listed in schedule I, or
their investments are less than what is provided for in the notification.
 Composition of expert committees and standards: It has been found that the team
formed for conducting EIA studies is lacking the expertise in various fields such as
environmentalists, wildlife experts, Anthropologists and Social Scientists.
Public hearing:

 Public comments are not considered at an early stage, which often leads to conflict at a later
stage of project clearance.
 A number of projects with significant environmental and social impacts have been excluded
from the mandatory public hearing process.
 The data collectors do not pay respect to the indigenous knowledge of local people.

 Quality of EIA: One of the biggest concerns with the environmental clearance
process is related to the quality of EIA report that are being carried out.
 Lack of Credibility: There are so many cases of fraudulent EIA studies where
erroneous data has been used, same facts used for two totally different places etc.
 Often, and more so for strategic industries such as nuclear energy projects, the EMPs are
kept confidential for political and administrative reasons.

1. Details regarding the effectiveness and implementation of mitigation measures are often not
provided.
2. Emergency preparedness plans are not discussed in sufficient details and the information
not disseminated to the communities.

Way Forward

 Independent EIA Authority.

 Sector wide EIAs needed.

 Creation of a centralized baseline data bank.

 Dissemination of all information related to projects from notification to clearance to

local communities and the general public.
Applicability: All those projects where there is likely to be a significant alteration of ecosystems need
to go through the process of environmental clearance, without exception.

No industrial developmental activity should be permitted in ecologically sensitive areas.

Public hearing: Public hearings should be applicable to all hitherto exempt categories of projects
which have environmental impacts.

The focus of EIA needs to shift from utilization and exploitation of natural resources to conservation
of natural resources.

It is critical that the preparation of an EIA is completely independent of the project proponent.

 Grant of clearance: The notification needs to make it clear that the provision for
site clearance does not imply any commitment on the part of the impact Assessment
agency to grant full environmental clearance.
 Composition of expert committees: The present executive committees
should be replaced by expert people from various stakeholder groups, who are
reputed in environmental and other relevant fields.
Monitoring, compliance and institutional arrangements:

 The EIA notification needs to build within it an automatic withdrawal of clearance if the
conditions of clearance are being violated and introduce more stringent punishment for
noncompliance. At present the EIA notification limits itself to the stage when environmental
clearance is granted.
 The composition of the NGT needs to be changed to include more judicial persons from the
field of environment.
 Citizen should be able to access the authority for redressal of all violation of the EIA
notification as well as issues relating to non-compliance.

 Capacity building: NGOs, civil society groups and local communities need to build their
capacities to use the EIA notification towards better decision making on projects.

By, kamran zaffar

Kashmir law college

9622817330

(Don’t rely completely on notes)

 Unit IV

International Environmental Law and Norms

Stockholm Declaration, Global Warming and Ozone Conventions

The conventions focus on various issues, for example climate change, stratospheric ozone layer
protection, air quality, chemicals and nature conservation. The conventions are tools for promoting
cooperation and the development of international environmental law and actions. Some
conventions apply regionally, others globally.

The Swedish Environmental Protection Agency’s experts participate in the work and negotiations
under the conventions. Our experts also participate in the EU preparatory negotiations, which shape
the positions of the EU. During conferences of the parties, EU normally speaks for all its member
states.

The following conventions are among the key environmental protection agreements covered by the
Swedish Environmental Protection Agency:

 Aarhus Convention on Access to Information, Public Participation in Decision-making and

Access to Justice in Environmental Matters.
 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and
Their Disposal
 Berne Convention on the Conservation of European Wildlife and Natural Habitats
 Convention on Biological Diversity (CBD)
 Convention on Environmental Impact Assessment in a Transboundary Context.
 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
 Convention on Long-Range Transboundary Air Pollution (CLRTAP)
 Convention on the Conservation of Migratory Species of Wild Animals (CMS)
 European Landscape Convention
 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of
Ships
 Minamata Convention on Mercury
 Ramsar Convention on Wetlands of International Importance, especially as Waterfowl
Habitat
 Stockholm Convention on Persistent Organic Pollutants
 United Nations Framework Convention on Climate Change (UNFCCC)
 Vienna Convention for the Protection of the Ozone Layer
 World Heritage Convention
Stockholm Convention on Persistent Organic Pollutants

Adopted When and by Whom: It was adopted by the Conference of Plenipotentiaries on 22

May 2001 in Stockholm, Sweden. The Convention entered into force on 17 May 2004.

Objective: The objective of the Stockholm Convention is to protect human health and the
environment from persistent organic pollutants.

Key Provisions: The provisions of the Convention require each party to:

 Prohibit and/or eliminate the production and use, as well as the import and export, of the
intentionally produced POPs that are listed in Annex A to the Convention
 Restrict the production and use, as well as the import and export, of the intentionally
produced POPs that are listed in Annex B to the Convention
 Reduce or eliminate releases from unintentionally produced POPs that are listed in Annex C
to the Convention
 Ensure that stockpiles and wastes consisting of, containing or contaminated with POPs are
managed safely and in an environmentally sound manner

India specific trivia: India’s Union Cabinet gave its approval to ratify and accede to the Stockholm
Convention on Persistent Organic Pollutants on 20 October 2005. The Convention will enable India
to avail technical and financial assistance for implementing measures to meet the obligations of the
Convention.

World Charter of Nature

Adopted When and by Whom: It was adopted by United Nations member nation-states on
October 28, 1982.

Objective: This annex to a United Nations General Assembly resolution sets forth “principles of
conservation by which all human conduct affecting nature is to be guided and judged.” The Charter
recognizes the interaction between mankind and nature. It calls for member states to reflect the
stated principles in their national legislation

The Charter recognizes the interaction between mankind and nature. It calls for member states to
reflect the stated principles in their national legislation

Key Function:

It proclaims five principles of conservation by which all human conduct affecting nature is to be
guided and judged.

1. Nature shall be respected and its essential processes shall not be impaired.
 2. The genetic viability on the earth shall not be compromised; the population levels of all life
forms, wild and domesticated, must be at least sufficient for their survival, and to this end
necessary habitats shall be safeguarded.
3. All areas of the earth, both land and sea, shall be subject to these principles of conservation;
special protection shall be given to unique areas, to representative samples of all the
different types of ecosystems and to the habitats of rare or endangered species.
4. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are
utilized by man, shall be managed to achieve and maintain optimum sustainable
productivity, but not in such a way as to endanger the integrity of those other ecosystems or
species with which they coexist.
5. Nature shall be secured against degradation caused by warfare or other hostile activities.

Vienna Convention

Adopted When and by Whom: It was adopted in the year 1985 and entered into force in 1988.

Objective: The Vienna Convention for the Protection of the Ozone Layer and its Montreal Protocol
on Substances that Deplete the Ozone Layer are dedicated to the protection of the earth’s ozone
layer.

With 197 parties, it is one of the most widely ratified treaties in United Nations history.

Key Provisions: It acts as a framework for the international efforts to protect the ozone layer
however it does not include legally binding reduction goals for the use of CFCs.

India specific trivia: India became a Party to the Vienna Convention for the Protection of Ozone
Layer on 19 June 1991 and the Montreal Protocol on substances that deplete the ozone layer on 17
September 1992.

Sustainable Development and Public Trust Doctrine

The Official Definition Of Sustainable Development

Sustainable development is the idea that human societies must live and meet their needs without
compromising the ability of future generations to meet their own needs. The “official” definition of
sustainable development was developed for the first time in the Brundtland Report in 1987.

Specifically, sustainable development is a way of organizing society so that it can exist in the long
term. This means taking into account both the imperatives present and those of the future, such as
the preservation of the environment and natural resources or social and economic equity.

How Did The Idea Of Sustainable Development Get Relevant?

The industrial revolution is connected to the rise of the idea of sustainable development. From the
second half of the 19th century, Western societies started to discover that their economic and
industrial activities had a significant impact on the environment and the social balance. Several
ecological and social crises took place in the world and rose awareness that a more sustainable
model was needed.
Here are some examples of the economic and social crises that shook the world in the twentieth
century:

 1907: the American banking crisis

 1923: the crisis of American hyperinflation
 1929: the financial crisis of the 1930s begins
 1968: the worldwide protests against bureaucratic elites
 1973 and 1979: oil shocks
 1982: the debt shock of developing countries
 And some examples of ecological crises:
 1954: Rongelap nuclear fallout
 1956: Mercury crisis of Minamata
 1957: Torrey Canyon oil spill
 1976: Seveso disaster
 1984: Bhopal disaster
 1986: Chernobyl nuclear disaster
 1989: Exxon Valdez oil spill
 1999: Erika disaster
 But also: global warming, air pollution, the issue of the ozone layer, the loss of biodiversity…

The Tragedy of Commons And Sustainable Development [1968]

In 1968 the ecologist and philosopher Garret Hardin wrote an essay entitled the tragedy of the
commons. He argued that if individuals act independently, rationally and focused on pursuing their
individual interests, they’d end up going against the common interests of their communities and
exhaust the planet’s natural resources.

In this way, human free access and unlimited consumption of finite resource would extinguish these
same resources. Hardin believed that since man is compelled to procreated unlimitedly the Earth
resources would eventually get overexploited. To his eyes, mankind needed to radically change its
way of using common resources to avoid a disaster in the future – this would be the way to keep on
a sustainable development track.

Limits to Growth And Sustainable Development [1972]

A few years after Hardin’s essay, in 1972, Meadows et al., commissioned by the Club of Rome, ran a
computer simulation that aimed to predict the consequences of what could happen in a planet with
limited resources.

The interactions between 5 different dimensions – world population growth, industrialization,

pollution generation, food production, and non-renewable resource depletion – were analyzed,
considering a scenario where these variables grew exponentially and technology’s ability to increase
resources was linear.

The strongest ending scenario was that an economic and social collapse would happen by the end of
the 21st century if man imposes no limits to growth. After more than 4 decades, these predictions
seem to be right when it comes to pollution and it’s consequences – threatening sustainable
development.

1st UN Conference On The Environment And Sustainable Development [1972]

As the world’s knowledge of global politics evolved the first historical conferences were organized. In
1972, it took place in Stockholm the UN Conference on the environment – the first big world leaders
meeting organized by the UN to discuss the human impact on the environment and how it was
related to economic development. One of the main goals of this gathering was to find a common
outlook and common principles to inspire and guide the world’s population to preserve the “human
environment”.

The Human Development Index and Sustainable Development [1980]

Once the idea that our planet had limits that needed to be respected grew, together with the idea
that progress isn’t only about economic growth, integrated solutions started to develop – as is the
case with the Human Development Index (HDI). The HDI is nowadays a statistical tool that
measures countries’ economic and social achievements.

To do so, it uses dimensions such as health, education, financial flows, mobility or human security,
among others. Every year the UN Development Programme ranks countries based on the HDI report
released together with their annual report. It works as a periodic way of monitoring the
development levels of countries.

HDI & The Ecological Footprint

Achieving Sustainable Development

Ideally, humankind should get to a point where at least the minimum HDI is achieved and live below
the maximum ecological footprint per capita. Living above the minimum HDI would guarantee that
human needs such as education or health are satisfied.

An ecological footprint represents the maximum limit of consumption per person according to
Earth’s ecological capacity. Living below it wouldn’t compromise the future generations, as the
planet would be able to regenerate itself. If we could manage to keep above the minimum HDI and
below the maximum ecological footprint per capita (a number that is decreasing as the human
population increases) we’d be on track for a sustainable future.

But the fact is that every year the Earth overshoot day comes earlier. This day represents the date
when humankind gets in debt with the planet. Why? Because our demand for ecological resources in
a given year has been exceeding what the planet can regenerate in that same year.

We’re keeping this deficit because we’re using more ecological resources than the planet can handle
to lose. At the same time, we’re also not taking proper care of our waste. We’re dealing with it in a
linear way, in opposition to nature, where everything follows a circular approach. Today’s
consumption habits are a big threat to sustainable development.

The Brundtland Report and Sustainable Development [1987]

The Brundtland report, also known as Our Common Future, gave the most recognized and widely
accepted definition of the term <sustainable development> in 1987. Following this report, “the
human ability to ensure that the current development meets the needs of the present without
compromising the ability of future generations to meet their own needs” was the first widely
accepted definition of sustainable development.

The World Commission on the Environment and Development also stood out that sustainable
development needed to consider that developing has limitations. According to the organization, the
“present state of technology and the social organization on environmental resources, together with
the limited ability of the biosphere to absorb the effects of human activities” impose limitations on
sustainable development.

Climate Change & Sustainable Development [1988]

As the consciousness about the impact that climate change could have on the planet and on human
life grew, the International Panel on Climate Change was created by the UN Development
Programme and the World Meteorological Organization. It’s purpose was (and still is) to develop and
share knowledge about the impact of human activities on climate change. It also aims to explore the
causes, consequences, and ways of fighting climate change.

CO2 and methane are gases that exist to help the Earth keep its ideal temperature and guarantee
life as we know it. Nonetheless, the excessive production of these gases leads to an increase in the
planet’s temperature. This happens because part of the heat the Earth irradiates and that’d go to
space keeps trapped in the atmosphere.

The Triple Bottom Line & Sustainable Development [1994]

The triple bottom line is an important assumption that’s part of the foundations of sustainable
development. It was first used by John Elkington, the founder of a sustainability consultancy firm.

This expression means that companies should consider 3 different bottom lines in their businesses –
and not only, as was usual at the time (and still is in many companies today), care about the profit
and loss account. This means that organizations should also measure how socially responsible the
operations across their value-chain are.

In addition, Elkington combined a third concern: that companies also needed to measure their
environmental impact on the planet. In the end, the idea is business needs to be concerned about its
impact on people and planet – and not only finance and profit.

The Millennium Ecosystem Assessment And Sustainable Development [2001]

The Millennium Ecosystem Assessment was a 4 years-long investigation that started in 2001 and was
requested by the UN. Over 1200 researchers gathered to assess the consequences that ecosystems’
changes had on human well-being. Finding the scientific basis for action needed to improve the
conservation and sustainable use of ecosystems was another goal.
The main findings of the investigation were:

 Humans have changed ecosystems more quickly and widely than ever before. This resulted
in a substantial and largely irreversible biodiversity loss;
 The changes made to ecosystems improved human well-being and the economy but have
harmed the planet and society. It wasn’t only biodiversity decreasing at a high rate. Poverty
 was also still affecting many communities and climate change increased the risk of nonlinear
changes;
 The degradation of ecosystems services would probably get worse over the 21st century;
 The changes needed to preserve the ecosystem’s degradation and meet the increasing
demand for services could still be met. Nonetheless, it would involve significant changes in
policies across the public and private sectors.

Sustainable Development Today

Today’s framework on sustainable development is quite strong although there is still a huge way to
go. The latest IPCC report demonstrated that big changes will need to happen quickly regarding the
reduction of CO2 emissions to keep the Earth’s temperature below 2ºC and prevent its devastating
impacts.

There are many actors working with different audiences in different areas of sustainability. They
share the same goal – to raise awareness on this topic and to create conditions for it to grow and
develop. One of the main players is the United Nations, where different teams actively work on
multiple campaigns such as #beatplasticpollution or #solvedifferent, apart from organizing the
meetings between the world leaders.

On the business side, the World Business Council for Sustainable Development (WBCSD) helps its
member companies to accelerate their businesses transition to create a sustainable world. There are
also some certifications that reward (mostly through a stamp recognition) the businesses with the
best practices for the planet, such as the B-Corp movement, the Rainforest Alliance, the Fairtrade
Foundation or the Conscious Capitalism Movement.

At the same time, entities like the Elen MacArthur Foundation are opening the way when it comes to
the circular economy and how societies and businesses can align how they use natural resources
with the way nature does it. Aligning businesses’ operations across their supply chains is also
allowing different and ecological business models to develop – such as growing mushrooms from
coffee leftovers.

Basically, the ancient Roman Empire developed this legal theory i.e. Doctrine of the Public Trust.
The Public Trust Doctrine 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,
they should be made freely available to everyone irrespective of the status in life. 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.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective management of natural
resources. It is a common law concept, defined and addressed by academics in the United States and
the United Kingdom. Various common properties; including rivers, the seashore, and the air, are
held by the government in trusteeship for the uninterrupted use of the public. The sovereign could
not, therefore, transfer public trust properties to a private party if the grant would interfere with the
public interest. The public trust has been widely used and scrutinized in the United States, but its
scope is still uncertain. Various have been made to apply this doctrine to protect navigable and non-
navigable waters, public land sand parks, and to apply it to both public and private lands and
ecological resources. The Supreme Court of California has broadened the definition of public trust by
including ecological and aesthetic considerations. Although the public trusts doctrine is not without
its fair share of criticism it is being increasingly related to sustainable development, the
precautionary principle and bio-diversity protection. The doctrine combines the guarantee of public
access to public trust resources with a requirement of public accountability in respect of decision-
making regarding such resources. Moreover, not only can it be used to protect the public from poor
application of planning law or environmental impact assessment, it also has an intergenerational
dimension.

The Stockholm Declaration of United Nations on Human Environment evidences this seminal
proposition:

" The natural resources of the earth, including the air, water, land, flora and fauna and
especially representative samples of natural system, must be safeguarded for the benefit of
present and future generations through careful planning or management, as appropriate... "

The Public Trust Doctrine can also be used as leverage during policy deliberations and public
scoping sessions and hearings. This forces agencies to prove that their actions are not
environmentally harmful to the extent that they will destroy a public resource. If the agencies
fail to provide a more environmentally benign alternative, then you can bring up a Public
Trust lawsuit. Although the court process may be long and arduous, many important
precedents have been established.

The Doctrine of Public Trust In India

The Public Trust Doctrine has its origins in Roman Law. It has been extended in recent years,
placing a duty on the state to hold environmental resources in trust for the benefit of the
public. At its widest, it could be used by the courts as a tool to protect the environment from
many kinds of degradation. In some countries, the doctrine has formed the basis of
environmental policy legislation, allowing private rights of action by citizens for violations
by the state (directly or indirectly) of the public trust.

The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist
vision, has made environmental-ecological preservation a fundamental value. The higher
jurisprudence of Article 21 of the Constitution (right to life) embraces the protection and
preservation of nature's gift without which life ceases to be viable and human rights become a
simulacrum. In other words, this right to life under article 21 has been extended to include the
right to a healthy environment and the right to livelihood. The third aspect of the right to life
is the application of public trust doctrine to protect and preserve the public land. When the
Indian courts have applied the public trust doctrine, they have considered it not only as an
international law concept, but one, which is well established in their national legal system.

Accepting public trust doctrine as a part of common law, the Indian courts have applied this
explicitly in three recent cases, the first one in 1997 and two cases in 1999 , including the
case under consideration. Articles 48A and 51A of the Constitution also furnish the principles
of jurisprudence, which are fundamental to our governance under the Rule of Law.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others where the Indian
Supreme Court applied public trust with regard to the protection and preservation of natural
resources. In this case, the State Government granted lease of riparian forestland to a private
company for commercial purpose. The purpose of the lease was to build a motel at the bank
of the River Beas. A report published in a national newspaper alleged that the motel
management interfered with the natural flow of the river in order to divert its course and to
save the motel from future floods. The Supreme Court initiated suo motu action based on the
newspaper item because the facts disclosed, if true, would be a serious act of environmental
degradation.

The Supreme court in M.C. Mehta started that the Public Trust Doctrine primarily rests on
the principle that certain resources like air, sea, waters and forests have such great importance
to the people as a whole that it would be unjustified to make them a subject of private
ownership . The court observed that:
Our Indian legal system, which is 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 waters, airs, forests and ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources. These resources meant for public use
cannot be converted into private ownership. As rivers, forests, minerals and such other
resources constitute a nation's natural wealth. These resources are not to be frittered away and
exhausted by any one generation. Every generation owes a duty to all succeeding generations
to develop and conserve the natural resources of the nation in the best possible way. It is in
the interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a
part of the law of the land. The court also ruled that there is no any justifiable reason to rule
out the application of the public trust doctrine in all ecosystems in India.

In this case, the Supreme Court was faced with the classic struggle between those members of
the public who would preserve our rivers, lakes and open lands in their pristine purity and
those charged with administrative responsibilities who find it necessary to encroach to some
extent upon open land.... It stated that the public bodies should apply public trust doctrine
when there is no legislation to protect the natural resources.

In their view, applying the polluter pays principle, the Court directed the developer to pay
compensation by way of cost for the restitution of the environment and ecology of the area. It
had no difficulty in holding that the Himachal Pradesh government committed a patent
breach of public trust by leasing out the ecologically fragile land to be developed.

Chronologically, the second case on this subject is Th. Majra Singh v Indian Oil Corporation,
where the petitioner objected to the location of a plant for filling cylinders with liquefied
petroleum gas. It was held that the High Court can only examine whether authorities have
taken all precautions with a view to see that laws dealing with environment and pollution
have been given due care and attention. Though the case was decided on the basis of the
precautionary principle, it confirmed that the public trust doctrine has become part of the
Indian legal thought processes. In the High Court's opinion, the doctrines is apart and parcel
of Article 21 of the Constitution and that there can be no dispute that the State is under an
obligation to see that forests, lakes and wildlife and environment are duly protected.
According to the Court, the idea that the public has a right to expect certain lands and natural
areas to retain their natural characteristics is finding its way into the law of the land.

In the third case, M.I. Builders v Radhey Shyam Sahu, the Supreme Court has applied the
public trust doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation)
granted permission to a private builder to construct an underground shopping complex was
against the municipal Act and Master plan of the city of Lucknow. The builder was supposed
to develop the site at its own cost and then to realize the cost with profit not exceeding more
than 10% of the investment in respect of each shop. Under the terms of the agreement, full
freedom was given to the builder to0 lease out the shops as per its own terms and conditions
to persons of its choice on behalf of the Mahapalika. The builder was also given the right to
sign the agreement on behalf of the Mahapalika and was only required to a copy to the
Mahapalika after its execution. Both the builder and the Mahapalika were to be bound by the
terms of that agreement.
When the matter was challenged, the High Court set aside and quashed the agreement
between Mahapalika and the builder, and the relevant order of the Mahapalika permitting
such construction. The Court ordered Mahapalika to restore the park to its original position
within a period of three months from the date of the judgment and until that was done, to take
adequate measures and to provide necessary safeguards and protections to the users of the
park. The High Court took the accounts of the fact that Mahapalika never denied the
historical importance of the park and the preservation or maintenance of the park was
necessary from environmental angle. However, the only reason advanced by Mahapalika for
the construction of the underground commercial complex was to ease the congestion in the
area. The High Court took judicial notice of the conditions prevailing at the site and found
that the construction of an underground market would further congest the area. It added that
the public purpose, which is alleged to be served by construction of the underground
commercial complex, seemed total illusory.

On appeal by the builders, the Supreme Court held that the terms of agreement showed that
the clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a
trustee for the proper management of the park, has to be more cautious in dealing with its
properties. The Court added that the land of immense value had been handed over to it to
construct an underground shopping complex in violation of the public trust doctrine. The
maintenance of the park, because of its historical importance and environmental necessity,
was in itself a public purpose. Therefore, the construction of an underground market in the
grab of decongesting the area was wholly contrary and prejudicial to the public purpose. By
allowing the construction, Mahapalika has deprived its residents, and also others, of the
quality of life to which they were entitled to under the Constitution and under the Municipal
Act.

The agreement was opposed to public policy and not in the public interest. Mahapalika
allowed the commercial shopping complex to be build upon a public park in clear defiance of
the Uttar Pradesh Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika
violated the public trust doctrine and the Court ordered the demolition of the unauthorized
shopping complex.

The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established
in the Indian legal system and asserted that the public authorities should act as trustees of
natural resources. However, it is clear from all these cases that the court did not confer any
property right on the public under the trust. While applying the public trust doctrine, the
Court in all these cases, took account of either the polluter pays the principle or the
precautionary principle or both.
In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case, the High court
applied the public trust doctrine along with other principles such as the precautionary
principle and polluter pays principle. Moreover, in Kamal Nath case, the Supreme Court
directed, inter alia, that the lease be quashed and the full cost of restoration of the land to its
original natural condition be paid by the Motel.

The Court also ordered the Motel to remove all the construction on the riverbed and the banks
of the River Beas. However, in Th. Majra Singh, the High court found that the Indian Oil
Corporation (IOC) had taken all the precautions and followed all the safeguards required by
the law. Giving to the go ahead to the installation of the LRG plant located in the vicinity of a
polluted village, the Court ordered the IOC to take due precautions, so that pollution is not
caused to the environment and to plant fast growing trees like poplar eucalyptus. In the M.I.
Builders case, the Supreme Court ordered Mahapalika to demolish the unauthorized shopping
complex and to restore the park to its original beauty. It is clear that in these cases, the Court
adopted a balanced development approach.

It is interesting to note that in the Kamal Nath case the Supreme Court held that even if there
is a separate and a specific law to deal with the issue before the Court, it may still apply
public trust doctrine. If there is no suitable legislation to preserve the natural resources, the
public authorities should take advantage of this doctrine in addition to the fact that there was
a branch of municipal law. Secondly the Supreme Court in [Link], however, stated that
public trust doctrine has ?grown? from Article 21 of the constitution. By attaching this
doctrine to the fundamental right to life, the Supreme Court appears to be willing to diversify
the application of this doctrine. It seems likely that the court would give precedence to right
to life when the public trust doctrine, as a part of right to a safe and healthy environment, is
challenged by any other fundamental rights. Thirdly by ordering the Mahapalika to restore
the park to its original beauty, the Supreme Court redefined the duties of a trustee to its
beneficiaries the users of the park. In effect, it aligned the local authorities duty as a trustee
with the concept of intra-generational and inter-generational equity. Fourthly, the case came
before the court as a judicial review and not as challenge against the decision of the
government from a beneficiary. As this doctrine acts as a check upon administrative action by
providing a mechanism for judicial or resource allocation decisions. Therefore, public trust
doctrine could serve as an additional tool for environmental protection particularly where
administrative discretion has been abused.

Conclusion:
From the above discussions on the doctrine and various case laws, it is evident that the state
is not the owner of the natural resources in the country but a trustee who holds fiduciary
relationship with the people. By accepting this task the government is expected to be loyal to
the interests of its citizens and to discharge its duty with the interest of the citizens at heart
and involve them in decision-making process concerning the management of natural
resources in the country. The Public Trust Doctrine may provide the means for increasing the
effectiveness of environmental impact assessment laws. Thus, under this doctrine, the state
has a duty as a trustee under art. 48A to protect and improve the environment and safeguard
the forests and wildlife of the country. While applying art. 21 (right to life), the state is
obliged to take account of art. 48A, a Directive Principle of State Policy. The state's
trusteeship duties has been expanded to include a right to a healthy environment.

Notion of Doctrine of Public Trust in India:

Accepting public trust doctrine as a part of common law, the Indian courts have applied this
explicitly in three recent cases, the first one in 1997 and two cases in 1999. Articles 48A and
51A of the Constitution of India also furnish the principles of jurisprudence. Under this
doctrine, the state has a duty as a trustee under Art 48A to protect and improve the
environment and safeguard the forests and wildlife of the country. This Public trust doctrine
has grown from Article 21 of the Constitution of India.

Principles Of Environmental Law

The design and application of modern environmental law have been shaped by a set of principles
and concepts outlined in publications such as Our Common Future (1987), published by the World
Commission on Environment and Development, and the Earth Summit’s Rio Declaration (1992).

The precautionary principle

As discussed above, environmental law regularly operates in areas complicated by high levels of
scientific uncertainty. In the case of many activities that entail some change to the environment, it is
impossible to determine precisely what effects the activity will have on the quality of the
environment or on human health. It is generally impossible to know, for example, whether a certain
level of air pollution will result in an increase in mortality from respiratory disease, whether a certain
level of water pollution will reduce a healthy fish population, or whether oil development in an
environmentally sensitive area will significantly disturb the native wildlife. The precautionary
principle requires that, if there is a strong suspicion that a certain activity may have environmentally
harmful consequences, it is better to control that activity now rather than to wait for
incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which
stipulates that, where there are “threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.” In the United States the precautionary principle was incorporated into
the design of habitat-conservation plans required under the aegis of the Endangered Species Act. In
1989 the EC invoked the precautionary principle when it banned the importation of U.S. hormone-
fed beef, and in 2000 the organization adopted the principle as a “full-fledged and general principle
of international law.” In 1999 Australia and New Zealand invoked the precautionary principle in their
suit against Japan for its alleged overfishing of southern bluefin tuna.

The prevention principle

Although much environmental legislation is drafted in response to catastrophes, preventing

environmental harm is cheaper, easier, and less environmentally dangerous than reacting to
environmental harm that already has taken place. The prevention principle is the fundamental
notion behind laws regulating the generation, transportation, treatment, storage, and disposal of
hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their
Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal
dumping. The prevention principle also was an important element of the EC’s Third Environmental
Action Programme, which was adopted in 1983.

The “polluter pays” principle

Since the early 1970s the “polluter pays” principle has been a dominant concept in
environmental law. Many economists claim that much environmental harm is caused by
producers who “externalize” the costs of their activities. For example, factories that emit
unfiltered exhaust into the atmosphere or discharge untreated chemicals into a river pay little
to dispose of their waste. Instead, the cost of waste disposal in the form of pollution is borne
by the entire community. Similarly, the driver of an automobile bears the costs of fuel and
maintenance but externalizes the costs associated with the gases emitted from the tailpipe.
Accordingly, the purpose of many environmental regulations is to force polluters to bear the
real costs of their pollution, though such costs often are difficult to calculate precisely. In
theory, such measures encourage producers of pollution to make cleaner products or to use
cleaner technologies. The “polluter pays” principle underlies U.S. laws requiring the cleanup
of releases of hazardous substances, including oil. One such law, the Oil Pollution
Act (1990), was passed in reaction to the spillage of some 11 million gallons (41 million
litres) of oil into Prince William Sound in Alaska in 1989. The “polluter pays” principle also
guides the policies of the EU and other governments throughout the world. A 1991 ordinance
in Germany, for example, held businesses responsible for the costs of recycling or disposing
of their products’ packaging, up to the end of the product’s life cycle; however, the German
Federal Constitutional Court struck down the regulation as unconstitutional. Such policies
also have been adopted at the regional or state level; in 1996 the U.S. state of Florida, in
order to protect its environmentally sensitive Everglades region, incorporated a limited
“polluter pays” provision into its constitution.

The integration principle

Environmental protection requires that due consideration be given to the potential consequences of
environmentally fateful decisions. Various jurisdictions (e.g., the United States and the EU) and
business organizations (e.g., the U.S. Chamber of Commerce) have integrated environmental
considerations into their decision-making processes through environmental-impact-
assessment mandates and other provisions.

The public participation principle

Decisions about environmental protection often formally integrate the views of the public.
Generally, government decisions to set environmental standards for specific types of pollution, to
permit significant environmentally damaging activities, or to preserve significant resources are made
only after the impending decision has been formally and publicly announced and the public has been
given the opportunity to influence the decision through written comments or hearings. In many
countries citizens may challenge in court or before administrative bodies government decisions
affecting the environment. These citizen lawsuits have become an important component of
environmental decision making at both the national and the international level.

Public participation in environmental decision making has been facilitated in Europe and North
America by laws that mandate extensive public access to government information on the
environment. Similar measures at the international level include the Rio Declaration and the
1998 Århus Convention, which committed the 40 European signatory states to increase the
environmental information available to the public and to enhance the public’s ability to participate
in government decisions that affect the environment. During the 1990s the Internet became a
primary vehicle for disseminating environmental information to the public.
Sustainable development

Sustainable development is an approach to economic planning that attempts to foster economic

growth while preserving the quality of the environment for future generations. Despite its enormous
popularity in the last two decades of the 20th century, the concept of sustainable development
proved difficult to apply in many cases, primarily because the results of long-
term sustainability analyses depend on the particular resources focused upon. For example, a forest
that will provide a sustained yield of timber in perpetuity may not support native bird populations,
and a mineral deposit that will eventually be exhausted may nevertheless support more or less
sustainable communities. Sustainability was the focus of the 1992 Earth Summit and later was
central to a multitude of environmental studies.

One of the most important areas of the law of sustainable development is ecotourism. Although
tourism poses the threat of environmental harm from pollution and the overuse of natural
resources, it also can create economic incentives for the preservation of the environment in
developing countries and increase awareness of unique and fragile ecosystems throughout the
world. In 1995 the World Conference on Sustainable Tourism, held on the island of Lanzarote in
the Canary Islands, adopted a charter that encouraged the development of laws that would promote
the dual goals of economic development through tourism and protection of the environment. Two
years later, in the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific countries pledged
themselves to a set of principles that included fostering awareness of environmental ethics in
tourism, reducing waste, promoting natural and cultural diversity, and supporting local economies
and local community involvement. Highlighting the growing importance of sustainable tourism, the
World Tourism Organization declared 2002 the International Year of Ecotourism.

Current Trends And Prospects

Although numerous international environmental treaties have been concluded, effective agreements
remain difficult to achieve for a variety of reasons. Because environmental problems ignore political
boundaries, they can be adequately addressed only with the cooperation of numerous governments,
among which there may be serious disagreements on important points of environmental policy.
Furthermore, because the measures necessary to address environmental problems typically result in
social and economic hardships in the countries that adopt them, many countries, particularly in the
developing world, have been reluctant to enter into environmental treaties. Since the 1970s a
growing number of environmental treaties have incorporated provisions designed to encourage
their adoption by developing countries. Such measures include financial cooperation, technology
transfer, and differential implementation schedules and obligations.

The greatest challenge to the effectiveness of environmental treaties is compliance. Although

treaties can attempt to enforce compliance through mechanisms such as sanctions, such measures
usually are of limited usefulness, in part because countries in compliance with a treaty may be
unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of
sanctions is less important to most countries than the possibility that by violating their international
obligations they risk losing their good standing in the international community. Enforcement
mechanisms other than sanctions have been difficult to establish, usually because they would
require countries to cede significant aspects of their national sovereignty to foreign or international
organizations. In most agreements, therefore, enforcement is treated as a domestic issue, an
approach that effectively allows each country to define compliance in whatever way best serves its
national interest. Despite this difficulty, international environmental treaties and agreements are
likely to grow in importance as international environmental problems become more acute.

Many areas of international environmental law remain underdeveloped. Although international

agreements have helped to make the laws and regulations applicable to some types of
environmentally harmful activity more or less consistent in different countries, those applicable to
other such activities can differ in dramatic ways. Because in most cases the damage caused by
environmentally harmful activities cannot be contained within national boundaries, the lack of
consistency in the law has led to situations in which activities that are legal in some countries result
in illegal or otherwise unacceptable levels of environmental damage in neighbouring countries.

This problem became particularly acute with the adoption of free trade agreements beginning
in the early 1990s. The North American Free Trade Agreement (NAFTA), for example,
resulted in the creation of large numbers of maquiladoras—factories jointly owned by U.S.
and Mexican corporations and operated in Mexico—inside a 60-mile- (100-km) wide free
trade zone along the U.S.-Mexican border. Because Mexico’s government lacked both the
resources and the political will to enforce the country’s environmental laws, the maquiladoras
were able to pollute surrounding areas with relative impunity, often dumping hazardous
wastes on the ground or directly into waterways, where they were carried into U.S. territory.
Prior to NAFTA’s adoption in 1992, the prospect of problems such as these led negotiators to
append a so-called “side agreement” to the treaty, which pledged environmental cooperation
between the signatory states. Meanwhile, in Europe concerns about the apparent connection
between free trade agreements and environmental degradation fuelled opposition to
the Maastricht Treaty, which created the EU and expanded its jurisdiction.

By, kamran zaffar

Kashmir law college

9622817330

(Don’t rely completely on notes)