Subject: ENVIRONMENTAL LAW

Course: UG VII th Semester

Faculty: Dr. Gargi Chakrabarti

Module: Introduction

Concept and Dimensions of Environment

 Earth has existence of life form because its environment is suitable for life.
 The natural forces have given rise to an environment in Earth which is favourable of
growth of life. These forces here have gained a perfect balance. Each component is
dependent on each other, still each of them together make an environment appropriate
for life.
 Earth’s environment can be divided into four divisions: Atmosphere, biosphere,
hydrosphere, and lithosphere. Atmo = air, bio = life, hydro = water and litho = stone.
 Lithosphere is the solid rocky crust covering entire planet; it is inorganic and
composed of minerals, it consists of earth’s crust and upper mantle.
 Hydrosphere is composed of all the water on or above the earth’s surface; this
includes oceans, rivers, lakes, underground water and even the moisture in the air.
 Atmosphere is the layers of air which surrounds the earth, air comprises of 78% of
nitrogen, 21% of oxygen, small amount of carbon-di-oxide and other gasses; 97% of
the atmospheric gasses are concentrated up to a height of 29 Km. from the earth’s
surface.
 Lithosphere, hydrosphere and atmosphere together make the abiotic components of
the environment.
 Biosphere is life form on the earth; plants, animals, all living organisms and even
single-celled organisms are included in biosphere. It is also called the biotic
component of the environment.

Environmental aspects discussed in ancient literature& culture in India

 Environment is discussed in Vedas, Upanishads, Smritis, and Dharmas; the
worshipful attitude was seen for plants, trees, Mother Earth, sky, air, water etc. and
the duty of human being was to protect them. So, the ancient literature talks about
worship of nature, environmental protection and conservation.
 Many verses of Vedas (like in Rigveda or Atharvaveda) had praised Surya Devta
(sun), Vayu Devta (air), Agni Devta (fire), Varun Devta (God of water), Prithvi Mata
(Mother Earth), Vana Devi (Goddess of forest) etc.; hence, according to the teachings
of Vedas tree cutting, polluting air or water or land was sinful act and protection of
environment was considered as sacred duty of man.
 Matsya Puran regarded planting one tree equals to ten sons.
 Manusmriti told about many punishments given in ancient India for destruction of
trees and plants.
  Charak Samhita also mentioned that cutting trees and destruction of forests as the
most dangerous act for the humanity; even it had given immense importance on purity
of water and healing and medicinal power of the water.
 Arthashashtra (Kautilyan Jurisprudence) had enumerated law concerning forests like,
state to maintain forests, fine for cutting different parts of trees, compensations for
damaging forests, protection of forest products and wild animals and fees for hunting
etc.
 Trees and flowers are considered to be the sacred entity, these are considered as the
adobe of various Gods and Godesses; flowers are must in worship of almost all
religion, this sense of worship creates the background utility and spirituality.
 In Hindu mythology, different trees are linked with different Gods and Goddesses, so
protected from degradation, examples are Lotus flower with Lakshmi, Banyan tree
with Brahma, Ashoka tree with Indra & Buddha, Kadamb with Krishna, Neem tree
with Sitala and Manasa, Pipal tree with Vishnu & Krishna etc.
 Ashoka’s 5th Pillar Edict had given some rules of environmental protection, such as,
forbidding of some specific species of animals, prohibition of burning of forest, rules
for fishing and hunting.
 In Indian culture most of the mountains, hills, rivers, forests, lakes and even trees
were linked with some God, or ancestor, or Rishi; these phenomena equivalent to
maintenance of sanctity of these things. There are rituals in Indian culture, which is
intricately link environment with ceremonies of birth, death, marriage etc. This makes
human being caring about nature and natural environment. In Bombay Dyeing & Mfg.
Co. Ltd vs Bombay Environmental Action 1 case, Court emphasized on these points
and held that ‘constitutional policy of sustainable development has to be
implemented’.

Hindu religious scriptures teach the following general guideline to be practiced in the daily
life:
 Respect nature,
 Life in living is dependent on various components of nature,
 Keep harmony with nature,
 Protect natural environment,
 Utilize natural resources only to satisfy the need of the people,
 Presence of divinity of nature in all living and non-living objects,
 All must have compassion for animate objects, like trees, animals, birds, aquatic life
etc.,
 Air, water, land, sky, trees, animals are the creation of God and He dwells in all of
them. Therefore, to worship them is to worship Him,
 Man being the creation of God, has no special privilege or authority over other
creatures, on the other hand he has more obligations and duties to protect and improve
them,

1
(2006) 3 SCC 434.
 Ahimsa Paromo Dharmah (non-violence) is the order which teaches to be non-violent
to animals, birds, trees, and micro-organisms, Hinsa (violence) was considered as a
sin,
 Natural calamities like draught, flood, storms, heavy rain, cloudbursts, lightening,
earthquakes, volcanic eruptions, heavy tides are thought to be anger of Gods and
Goddesses,
 All lives human as well as non-human believed to be of equal value and all have same
right of existence; i.e. principle of sanctity of life is thus deep-rooted in the values of
Hindu religion.
 Pre-independence policy evolution

 Policies in Ancient India

 In ancient India, protection and cleaning up of environment was the essence of Vedic
culture. The conservation of environment formed an ardent article of faith, reflected in
the daily lives of the people and also enshrined in myth folklore, art, culture and
religion. In Hindu theology forests, trees and wildlife protection held a place of
special reverence. Cutting green trees was prohibited and punishment was prescribed
for such acts. Under the Hindu culture moral injunctions acted as guidelines towards
environmental preservation and conservation. For instance, to maintain the quality of
water and to avoid the water pollution, Manu advised not to contaminate water by
urine, stool or coughing, un-pious objects, blood and poison. Yagyavalkya Smriti and
Charak Samhita give many instructions for the use of water for maintaining its purity.
Under the Arthtashastra, various punishments were prescribed for cutting trees,
damaging forests, and for killing animals. The State assumed the functions of
maintenance of forests, regulation of forest produces and protection of wildlife.
Arthashastra also prescribed punishment for causing pollution and un-civic sanitation.
Thus, ancient India had a philosophy of environmental management principally
enshrined in old injunctions as they were contained in many scriptures and smritis.
The environmental ethics of nature conservation were not only applicable to common
man but the rulers and kings were also bound by them.

 Policies in Medieval India

 During the Moghul period environment conservation did not receive much attention.
It is righty said: “To Moghul rulers, forest meant no more than woodlands where they
could hunt. To their governors, the forests were properties which yielded some
revenue. Barring royal trees‟ which enjoyed patronage from being cut except upon a
fee, there was no restriction on cutting of other trees. Thus, forests during this period
shrank steadily in size.”
 However, the forests were managed with the help of a complex range of rules and
regulations woven around the socio-cultural features as well as the economic
activities of local communities. Further, the religious policy of Akbar based on the
principal of complete tolerance also reflects concern for protection of birds and beasts
in so much so as endeavours were taken during his region to stop their unnecessary
 killing. During medieval era, another set of legal principles were inducted, governed
by the holy Koran which declares that “we made from water every living things”.

 Policy and Law in British India

 British Colonial rule brought huge changes in the religiously oriented Indian social
system. The British regime shows the foundation of organized forest management.
They focused on forestry, wildlife and water pollution in particular. In the field of
forest protection, the enactment of the Forest Act, 1865 was the first step at
emphasizing the State monopoly right over the forests. The customary rights of rural
communities towards management of forests and forest-resources were truncated by
the Act. The Forest Act of 1927 specifically denied people any rights over the forest
yield simply because they were domiciled there. In the field of wildlife protection, the
British practiced selective wildlife conservation. During this period, the concern for
protection and management of water resources in India came through the first major
development in the form of Bengal Regulation VI, 1819, which did not mention
protection of water environment from pollution but invested the Government with
sovereignty over water resources. It marked fundamental shift from earlier practices,
which treated the water resources as “common property” of all, with control lying in
the hands of the people. The Shore Nuisance (Bombay and Kolaba) Act, 1853 and the
Oriental Gas Company Act, 1857 imposed restrictions on the fouling of water. The
Merchant Shipping Act, 1858 dealt with prevention of pollution of sea by oil. In 1860,
for the first time, an attempt was made to control especially water and atmospheric
pollution through criminal sanctions under the Indian Penal Code, 1860. As against
prohibitive provisions under the IPC, 1860, the Easement Act of 1882 allowed a
prescription right to pollute the water but it was not an absolute right (one was not to
“unreasonably pollute” or cause “material injury to other”). The Bengal Smoke
Nuisance Act of 1905 and Bombay Smoke Nuisance Act of 1912 were the earlier
laws enacted during the British Raj, aimed at controlling air pollution. Thus, the
environmental policy during the British rule was not directed at the conservation of
nature but rather was directed at the appropriation and exploitation of common
resources with a primary objective of earning revenue. Neither were there effective
laws for the protection of environment. Further, these laws had a narrow scope and
limited territorial reach.

 Post-independence policy evolution

 Environmental Policy and Law until 1970

The Indian Constitution, as adopted in 1950, did not deal with the subject of
environment or prevention and control of pollution as such (until 1976 Amendment).
The post-independence era, until 1970, did not see much legislative activity in the
field of environmental protection.
Two early post-independence laws touched on water pollution. The Factories Act,
1948 required all factories to make effective arrangements for waste disposal and
empowered State Governments to frame rules implementing this directive. Under the
 River Boards Act, 1956, river boards established are empowered to prevent water
pollution of inter-state rivers.
 To prevent cruelty to animals, the Prevention of Cruelty of Animals Act was framed
in 1960.
 Some States took initiative in the field of environmental protection, viz., Orissa River
Pollution Prevention Act, 1953, and, Maharashtra Prevention of Water Pollution Act,
1969. While the Orissa Act was confined only to rivers, the Maharashtra Act extended
to rivers, watercourses, whether flowing or for the time being dry, inland water both
natural and artificial, and subterranean streams.
 Thus, there were scattered provisions for checking pollution of air, water, etc., but
there was no unified effort in developing any policy concerning the pollution
emanating from these areas. This position went up to the seventies. Meanwhile
concern arose over, inter-alia, population increase, greater pollution levels; human
impact on animal populations and natural landscapes and other aspects of resource
depletion.
 It was the Stockholm Declaration of 1972 which turned the attention of the Indian
Government to the boarder perspective of environmental protection. The government
made its stand well known through five-year plans as well as the legislations enacted
subsequently to curb and control environmental pollution. After 1970, comprehensive
(special) environmental laws were enacted by the Central Government in India.

 Environmental Policy and Law after 1970

Aim of The Wildlife (Protection) Act, 1972 was rational and modern wild life
management. The Water (Prevention and Control of Pollution) Act, 1974, provided
the establishment of pollution control boards at Centre and States have to act as
watchdogs for prevention and control of pollution. With the aim of reduction of
deforestation, stoppage of diversion of forest land for non-forestry purposes, and
promotion of social forestry, The Forest (Conservation) Act, 1980 was enacted. The
Air (Prevention and Control of Pollution) Act, 1981, aimed at checking air pollution
via pollution control boards. The Environment (Protection) Act, 1986 was a landmark
legislation and it focused to the protection of environment and sealing the loopholes
in existing legislation. It provides with rigorous penalties in case of violation for
pollution control. The Public Liability Insurance Act, 1991, provides for mandatory
insurance for the perseverance of providing immediate relief to person affected by
accidents occurring while handling any hazardous material. The National
Environment Tribunals Act, 1995, was formulated because of the fact that civil courts
litigations take a long time (as happened in Bhopal case). The Act provides for speedy
disposal of environmental related cases through environmental tribunals. Under the
Act, four benches of the tribunal will be set up in Delhi, Calcutta, Madras and
Bombay and 8,000 of the most Hazardous industrial units in the country will be
brought under its security.
 The National Environment Appellate Authority Act, 1997, provides for the
established of a National Environment Appellant Authority (NEAA) to hear appeals
with respect to restriction in areas in which any industries, operations or processes
 shall not be carried out or shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986. The Biological Diversity Act, 2002, is a major
legislation intervention effected in the name of the communities supposed to be
involved in the protection of biodiversity around them. The Act intends to facilitate
access to genetic materials while protecting the traditional knowledge associated with
them.

 By early 1972 it had been realized that establishment of a national body was required
to bring about greater coherence and coordination in environmental policies and
programmes and to incorporate environmental concerns in the plans for economic
development. Thus, in Feb. 1972, a National Committee on Environmental Planning
and Coordination (NCEPC) was established in the Dept. of Science and Technology.
The NCEPC was the top advisory body in all matters relating to environmental
protection and improvement. The duty of that Committee was to plan and coordinate,
but the responsibility for execution of plans remained with the various ministries and
governmental agencies. Over time the composition of the Committee changes
significantly and decision making became more complex.
 The Fifth Five Year Plan (1974 – 1979) that the NCEPC should be involved in all
major industrial designs and balance between development planning and
environmental management has to be maintained thereof. In this context, Minimum
Needs Programme (covering rural education, health, nutrition, drinking water, etc.)
received a fairly high priority, and was expected to minimize environmental pollution
and degradation in rural areas.
 In the Sixth Five Year Plan (1980-85), an entire chapter on “Environment and
Development” was included that emphasized sound environmental and ecological
principles in land use, agriculture, forestry, mineral extraction, energy production, etc.
It provided environmental guidelines to be used by administrators and resource
managers when formulating and implementing programmes, and lay down an
institutional structure for environmental management by the Central and State
Governments.
 The basic methodology taken by the Seventh Plan (1985-90) was to stress sustainable
development in harmony with the environment, as the federal government had
recognized the undesirable effects that development programmes were having on the
environment. The Plan called for the government and voluntary agencies to work
together to create environmental awareness: “This is a philosophy which must
permeate the entire effort in the field of environment.” However, even today this basic
philosophy has still not taken hold because the entire emphasis on industrialization,
agri-business and power-generation projects (form First to Fourth Five Year Plans),
with little concern for environmental protection, has not relinquished its grip on
decision makers.
 The Seventh Plan recognized that “the nation’s planning for economic growth and
social well-bring in each sector must also work to secure improvement in
environmental quality”. The leaders of the country had realized that poverty and
 under-development, as opposed to development activities, had led to many of the
country’s environment problems.
 The Eight Five Year Plan (1992-1997) gave an important place to the environment by
moving it to the fourth category of subjects examined in the text. The Plan stated:
“Systematic efforts have been made since the Sixth Plan period of integrate
environmental considerations and imperatives in the planning process in all the key
socio-economic
 sectors. As a result of sustained endeavour, planning in all major sectors like
industry, science and technology, agriculture, energy and education include
environmental considerations.”
 The Ninth Plan (1997-2002) has emphasized on “Growth with Social Justice and
Equity”. The Joint Forest Management and Community Forestry have been specially
emphasized in the Plan. The Tenth Plan (2002-2007) is on the similar lines.

 In 1992, the Union Government adopted “National Conservation Strategy and Policy
Statement on Environment and Development (NCS).” The preamble to the NCS
adopts the policy of ‘sustainable development’ and declares the government’s
commitment to re-orient policies and action “in unison with the environmental
perspective.” The NCS proceeds to recognize the enormous dimensions of the
environmental problems facing India and declares strategies for action in various
spheres such as agriculture, forestry, industrial development, mining and tourism.
Special sections in the NCS deal with the rehabilitation of persons ousted by large
development projects; the role of NGOs; and the special relationship between women
and the environment.
 Again, in 1992, the Union Government came out with “Policy Statement for
Abatement of Pollution.” This statement declares the objective of the government to
integrate environmental considerations into decision-making at all levels. To achieve
this goal, the statement adopts fundamental guiding principles, namely:
 (i) Prevention of pollution at source;
 (ii) Adoption of the best available technology;
 (iii) Polluter pays principles; and
 (iv) Public participation in decision-making.
 The policy statements, though unenforceable in a court of law, represent a broad,
political consensus and amplify the duties of the government under the Directive
Principles of State Policy contained in Part IV of the Constitution. In the hands of a
creative judge the policy documents may serve as an aid for interpreting
environmental statutes or for spelling out the obligations of government agencies
under environmental laws.
 For example, in State of HP v. Ganesh Wood Products,2 the Supreme Court relied
upon the National Forest Policy and the State Forest Policy of Himachal Pradesh to
invalidate a decision taken by the State industrial project authority. It was held that
the policy of “economic liberalization” has to be understood in the light of the
National Forest Policy and forest laws enacted by the government. The court
2
(AIR 1996 SC 149)
 cautioned government departments against ignoring the forest policies and warned
that disregard of these policies would imperil government decisions. It is submitted
that unless the government policy is baked by adequate budgetary allocations,
changes to the statutory regime and a bureaucratic will, the government’s intentions
are apt to remain on paper.

 Recent Legislative Measures (Delegated Legislation)

 During the nineties, some steps have been taken by the Central Ministry of
Environment to provide legal and institutional basis for management and protection of
environment by way of rules, notification of standards, delegation of powers,
identification of agencies for hazardous chemicals management and setting up of
Environmental Councils in some States. A new chapter regulating hazardous
industrial processes was introduced into the Factories Act. In the area of delegated
legislation, effluent and emission standards were specified for 24 industries and
general standards for effluent discharge and for noise pollution have been prescribed
under the Environment Act. For the analysis of water and air samples, about seventy
environmental laboratories were established across the country. Rules for the
manufacture and transport of hazardous substances and microorganisms and for the
management of toxic wastes were issued. Coastal Zone Regulations (CZR) were
issued in 1991. A Gazette notification on environmental audit has been issued,
whereby environment audit has been made compulsory for all industries requiring
environmental clearance under the Water Act, 1974 or The Air Act, 1981, etc.,
Further, in 1996, the Central Government framed the Chemical Accidents
(Emergency, Planning, Preparedness and Response) Rules to Supplement the
Hazardous Chemical Rules of 1989. In 1998, the Central Government issued the Bio-
Medical Waste (Management and Handling) Rules to regulate bio-medical waste.
 The Central Ministry of Environment issued a notification in 1994 making
Environment Impact Assessment statutory for 29 different activities in industries,
mining, irrigation, power, etc. A new dimension was added in 1997, to the
Environment Impact process in India, by an amendment. The State Pollution Control
Boards had nothing to do in the assessment process so far. They were now given a
new role to play. Further, in the case of certain categories of thermal power plants,
responsibility of environmental clearance is now conferred on the State Government.
Further, the Central Government enacted the Prevention and Control of Pollution
(Uniform Consent Procedure) Rules, 1999, requiring all industries listed in Schedule
VIII of the Environment Act, 1986 to obtain consent from the State Board or the
Pollution Control Committee. For the purpose of ‘consent management’, the
industries are categorized as ‘red’, ‘orange’ and ‘green’. The Environment (Sitting for
Industrial Projects) Rules, 1999, prohibit setting up of certain industries (including
hazardous industries) in certain areas such as within the municipal limits of all
Municipal Corporations/ Councils and Nagar Panchayats and a 25 km belt around the
cities having population of more than 1 million; the periphery of the wetlands,
national parks, sanctuaries and bioreserves. Recently, the Central Government framed
the Recycled Plastic Manufacture and Usage Rules, 1999. The Rules prohibit vendors
 of foodstuffs from packing their wares in bags or containers made from recycled
plastics. If foodstuffs are to be sold in plastic bags, the carry bag must be made of
virgin plastic. The Municipal Solid Wastes (Management and Handling) Rules, 2000,
apply to every municipal authority responsible for collection, segregations, storage,
transportation, processing and disposal of municipal solid wastes. While the nodal
responsibility to enforce these rules lies on the municipality, the Secretary-in-charge
of the Dept. of Urban Development of the concerned State, the District
Magistrate/Deputy Commissioner shall have the overall responsibility. The Central/
State Pollution Control Boards have been made responsibility to monitor the
compliance of the standards regarding ground water, ambient air quality and the
compost quality. The Battery (Management and Handling) Rules, 2000, provides for
specific categories of wastes such as battery, waste oil, etc. These rules shall apply to
every manufacturer, importer, re-conditioner, assembler, dealer, recycler, re-smelter,
auctioneer, consumer and bulk consumer involved in manufacturer, processing, sale
and purchase of batteries. For the purposes of these rules, they are under the broad
control of the State Pollution Control Boards. In 2000, the Noise Pollution
(Regulation and Control) Rules, framed by the Central Government under the
Environment Protection Act, 1986, came into effect. These Rules prescribed ambient
air quality standards in respect of noise for industrial, commercial and residential
areas as well as designated „silence zones‟. In the same year, the Central Government
enacted the Ozone Depleting Substances (Regulation and Control), rules, 2000 under
the Environment Protection Act. The producers, dealers, users engaged in the
manufacture/use of ozone depleting substances such as CFCs, Halon,
Cabontetrachloride (CCI4), etc., are required to compulsorily register under the Rules.
Thus, in recent decades India employed a range of regulatory instruments to preserve
and protect its natural resources. These ‘new’ laws are impressive in their range
covering hitherto unregulated fields, such as noise, hazardous waste, hazardous
micro-organisms, environment impact assessment, etc. the new legislation has
spawned new enforcement agencies and strengthened the older ones.

Environment protection and Indian Constitution

 Provision in for environmental protection in Indian Constitution
 Originally in Indian Constitution of 1950 there was no specific provision for
environmental protection. Later on, Indian Parliament passed the Forty Second
Constitution Amendment Act, 1976; in which two important articles were
incorporated, Article 48-A and Article 51-A(g) to protect and improve the
environment. Some more changes are introduced in Seventh Schedule of the
Constitution.
 Article 48-A: “The State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.”
 Article 51-A (g): “It shall be a duty of every citizen of India …. (g) to protect
and improve the natural environment including forests, lakes, and wildlife and
to have compassion for living creatures.”
  Seventh Schedule: List III – Concurrent List
Item No. 17-A: Forests
17-B: Protection of wild animals and birds
20-A: Population Control and Family Planning
 Thus, the various items of State List II were transferred to List III (Concurrent
List), which empowered Parliament to legislate acts on environmental issues
such as forests, wildlife, waste management etc. which was necessary for
changes in legal regime to ensure environmental protection.
 These changes are made to implement the decisions of Stockholm Conference
of 1972,3 which is an international conference on environmental protection;
and Parliament passed many acts thereafter for improvement of environment.

Case Laws:

Environmental jurisprudence:
Case 1 – Intellectuals Forum of Tirupathi v State of A.P.4
Supreme Court dealt with the issue of conflict between social development and
environmental protection, and it held that, “the responsibility of the State to protect the
environment is now a well-accepted notion in all countries. It is this notion that in
International Law gave rise to the principle of State responsibility for pollution emanating
within one’s own territories. This responsibility is clearly enunciated in the United Nations
Conference on Human Environment, Stockholm, 1972 (Stockholm Convention) to which India
was a party.”

Right to Pollution-Free and Healthful Environment – Fundamental Right

Parliament and State legislatures are passed based on recognition of clean environment as a
fundamental right of every human being. Clean environment is recognized as the basic need
of healthy human life. Any harm or damage to the natural environment would amount to
violation of human right to the clean environment. Chapter III of Indian Constitution is
dealing with the fundamental rights (Article 12 to 35), but there is no direct reference for
environmental damage of ecological imbalance, but the judicial decisions of Supreme Court
of India and State High Courts discussed about different perspectives of environment
protection in the form of fundamental right. It is also to remember that Constitutional Scheme
includes the fundamental rights of Indian citizen to have pollution free environment, at the
same time it is the fundamental duty of all citizens of India to protect the natural
environment.

Right to Equality and Environment

3
Refer to Annex I.
4
(2006) 3 SCC 549.
Article 14 of Indian Constitution confers ‘right to equality’ to all Indian citizen without any
discrimination, so no action of State related to environment should be like that as it infringes
the right to equality of Article 14. Stockholm Convention called for the principle of equality
in environmental management and also for all the nations to abide by this principle. Indian
State High Courts took strict stand in cases of environmental matters in which it is found to
violate Article 14; because sometimes due to illogical grant of lease and indiscriminate
activities in mines may hamper the wildlife and natural environment.
Issue of ‘right to equality’ under Article 14 in relation to protection of natural environment is
discussed in some cases like, Kisan Bhagwan Gawali & Others v. State of Maharashtra 5 and
Lakshman v. State of Madhya Pradesh 6, where cattle grazers faced discriminatory behaviour
from the state authorities; in Maharashtra Kathewadi grazers were banned from getting
license of grazing; and in Madhya Pradesh grazers of other states had to give levy of higher
grazing rate upon the cattle not belonging to that State and ceiling of 45 days in which that
"foreign" cattle must pass through the State. In both the cases, Court held this kind of
decision is against Article 14 and hence decision went in favour of grazers. In Kisan
Bhagwan Gawali & Others v. State of Maharashtra 7 case it was contended by State of
Maharashtra & the Forest Officers that Kathewadi grazers were guilty of violation of Grazing
Rules of Maharashtra,8 but court held that “it is difficult to accept that only Kathewadi
grazers have been and can be guilty of violation of the Act and not others, We are unable to
see any justification for a distinction between Kathewadi grazers on one hand and all other
grazers on the other hand,” hence, the petition is allowed and the impugned policy decision
is struck down as unconstitutional.
Right to Freedom of Trade & Commerce and the Environment

Fundamental right to freedom of trade and commerce is conferred under Article 19 (1) (g),
but consideration has to be kept for not to damage or pollute the neighbouring environment.
Any industrial or trading activity may cause damage to vegetation cover, aquatic life form,
animals and human health, Supreme Court has taken strong precedent in such cases. In M.C.
Mehta v. Kamal Nath9 the Court mentioned in the judgment dated December 13, 1996 that it
has found that the Motel by constructing walls and bunds on the river Banks and in the river
Bed, as detailed in the judgment, has interfered with the flow of the river. The Motel should
not discharge their untreated effluents into the river; Court directed the Himachal Pradesh
Pollution Control Board to inspect the pollution control devices/treatment plants set up by the
Motel, and if the effluent/waste discharged by the Motel is not conforming to the prescribed
standards, action in accordance with law be taken against the Motel. In such cases, Court
while exercising its jurisdiction, can not only award damages but also levy fine (exemplary
damages). Similar situation was found in Abhilash Textiles and Others v. Rajkot Municipal

5
AIR 1990 Bom. 342
6
1983 SCC (3) 275, 1983 SCR (3) 124
7
AIR 1990 Bom. 342
8
Grazing Rules for the Maharashtra State (the Rules) have been framed under Government Resolution No.
MFP-1365/132211-Y dated 6th December, 1968 supplemented by Government Resolution No. MFP 1371 /
237035-2 dated 3rd November, 1973.
9
(2000) 6 SCC 213
Corporation,10 in which Gujrat High Court found that petitioners were carrying out business
of dyeing and printing in many places of Rajkot and were discharging dirty water from the
factory on public roads public drainage without purifying the same, thereby causing damage
to the public health. It was held by the Court that, “Article 19(1)(g) of the Constitution
confers right upon every citizen to practice any profession or to carry on any occupation,
trade or business. But this fundamental right is subject to reasonable restrictions which may
be placed in the interest of the general public as provided for in sub-clause (6) of Art. 19
itself. No one has a right to carry on business so as to cause nuisance to the society. One
cannot carry on the business in the manner by which the business activity becomes a health
hazard to the entire society. The fundamental right to carry on trade or business is subject to
reasonable restrictions and regulations that may be placed in the interest of the general
public; .……… The provisions regarding fundamental duties of the citizens contained in Art.
51A(g) of the Constitution enjoins upon all the citizens to protect and improve the natural
environment. By no stretch of imagination, it can be said that the petitioners would be
protecting the natural environment by discharging the effluent from the factory on public
road and or in public drainage system.”

Right to Life and Right to Clean, Healthy Environment

Article 21 of Indian Constitution provided the ‘right to life’ to every citizen of India, though
it does not definitively mention about ‘right to clean, healthy environment’ still it can be
comprehended to cover the ‘right to clean, healthy environment’ also; judicial
pronouncements have also had similar interpretation of Article 21 in various cases. In case of
Consumer Education and Research Centre v. Union of India,11 Court had given a wider
interpretation of the phrase ‘right to life’, Court said, “The expression ‘life’ assured in Art.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 life,
hygienic conditions in work place and leisure.” That means ‘right to life’ includes ‘right to
have an environment worth living into’ and any activity which creates environmental
pollution can be regarded as violative of right to have a clean environment. In this particular
case, a writ petition was filed to prevent the occupational hazard related with workmen of
asbestos industries, as it was evident that many workers of this industry were suffering from
pneumoconiosis and lung cancer due to inhalation of asbestos dust. The writ petition was
therefore allowed, and all the industries were directed to maintain certain provisions which
will help in maintenance of safer working environment for the workers.

In the case of Hinch Lal Tewari v. Kamla Devi12 the Supreme Court said that, “It is important
to notice that the material resources of the community like forests, tanks, ponds, hillock,
mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to
be protected for a proper and healthy environment which enables people to enjoy a quality
life which is the essence of the guaranteed right under Article 21 of the Constitution. The
10
AIR 1988 Guj 57, (1987) 2 GLR 1325
11
(1995) 3 SCC 42
12
(2001) 6 SCC 496
Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that
a pond is falling in disuse, should have bestowed their attention to develop the same which
would, on one hand, have prevented ecological disaster and on the other provided better
environment for the benefit of the public at large. The State including Respondents 11 to 13
shall restore the pond, develop and maintain the same as a recreational spot which will
undoubtedly be in the best interest of the villagers. Further it will also help in maintaining
ecological balance and protecting the environment in regard to which this Court has
repeatedly expressed its concern. Such measures must begin at the grass-root level if they
were to become the nation's pride.”

Other cases for Article 21

Bijayanada Patra v. District Magistrate, Cuttack13 – PIL filed related to noise pollution.
K. Ramakrishna v. State of Kerala14 – Public smoking.

Right to Constitutional Remedies and Environment

Most of the cases of environmental pollution and ecological imbalances were filed under
Article 32 and Article 226 of the Constitution of India.

Article 32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

Article 226: Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
13
AIR 2000 Ori 70.
14
AIR 1999 Ker. 385.
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party in
whose favour such order has been made or the counsel of such party, the High Court shall
dispose of the application within a period of two weeks from the date on which it is received
or from the date on which the copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period, before the expiry of the next
day afterwards on which the High Court is open; and if the application is not so disposed of,
the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the
aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

These Articles are provided to secure the fundamental rights of citizens, and Supreme Court
of India is given this power under Article 32 & State High Courts under Article 226. Public
Interest Litigation (PIL) can be brought by any individual or organization, under PIL court
has enough power to grant relief and prevent any harmful or damage-causing activity. Under
Article 32 Supreme Court of India can issue orders, directions, and writs of mandamus,
certiorari, etc. if activity against right to clean, healthy, unpolluted environment have been
recognized by it as a violation of ‘right to equality’ (Article 14), ‘right to freedom’ (Article
19(1)), and ‘right to life’ (Article 21).

Among the already mentioned cases, Lakshman v State of MP case is under Article 32. In
M.C. Mehta v. Union of India15 was a PIL in which an application was made in public interest
seeking relief for issuing appropriate directions under Article 32 to Cinema exhibition halls to
exhibit slides containing information and messages on environment free of cost. Further
directions for spread of information relating to environment in national and regional
languages vide broadcast thereof on the All India Radio, exposure thereof on television in
regular and short-term programmes with a view to educating the people of India about their
social obligation. There was also a prayer that environment should be made a compulsory
subject in schools and colleges in a graded system so that there would be a general growth of
awareness. Notice had been issued to the Union of India on the petition and the Central
Government has immediately responded.

15
(1992) 1 SCC 358, 1992 AIR 382
Other Indian cases in which Court has taken decision as per right provided under Article 32:
M.C. Mehta v. Kamal Nath,16 Rural Litigation and Entitlement Kendra v. State of U.P.,17
M.C. Mehta v. Union of India.18

Fundamental duty of citizens and the environment

Article 51-A(g) and Article 48-A of the Constitution of India confers the fundamental duties
to Indian citizen and State for protection and sustainability of the natural environment.

Article 51-A. It shall be the duty of every citizen of India

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

Article 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.

It is explained by Supreme Court in Rural Litigation & Entitlement Kendra, Dehradun v.

State of UP19 case that “preservation of the environment and keeping the ecological balance
unaffected is a task which not only Governments but also every citizen must undertake. It is a
social obligation and let us remind every citizen that it is his fundamental duty as enshrined
in Article 51-A(g) of the Constitution.” It is also explained that Article 48-A and Article 51-
A(g) together are not only fundamental in the governance of the country, but also important
as duty of State to apply these principles in making laws and purport of fundamental rights.
Other cases to be read in context of this are as follows:
1) Sachidanand Pandey v. State of West Bengal – (1987) 2 SCC 295, 2) M.C. Mehta v.
State of Orissa – AIR 1992 Ori 225, 3) Burra Bazar Fire Works Dealers Assn. v.
Commissioner of Police, Calcutta

Tort of Nuisance and Environmental Pollution

Law of nuisance covers various kinds of activities which causes the pollution of the
environment. Nuisance means, “an unlawful interference with the use and enjoyment of land
or property or some right over or in connection with it.” In plain words, it means, anything
which annoys or hurts anyone or something which is offensive; it also covers the deleterious
things which causes inconvenience to others. It may be through escape of water, smoke,
fumes, gas, noise, heat, vibrations, electricity, germs etc. there are two categories of
‘nuisance’, private and public; among them public nuisance is a criminal offence and is
covered under IPC (s. 268 – 291) and CrPC (s. 133 – 144). The focal point of the law of
nuisance is the material interference with the ordinary comfort of human existence. The

16
(2002) 3 SCC 653
17
AIR 1985 SC 358.
18
(1986) 2 SCC 176.
19
1986 Supp SCC 517.
following factors are taken for consideration of judge whether discomfort is substantial or
insubstantial – (a) degree of intensity, (b) duration, (c) locality, and (d) the mode of using the
property. Remedies for private nuisance are: Abatement, damages, injunction.

The following cases can be referred regarding nuisance:

1. M.C. Mehta v. Union of India (River Ganga Pollution case) – (1988) 1 SCC 471.
2. Lakshmipathy v. State of Karnataka – AIR 1992 Kant 57.
3. Ram Raj Singh v. Babulal – AIR 1982 All 285.
4. M.C. Mehta v. Union of India – (1996) 8 SCC 462.

Tort of Negligence and Environmental pollution

Negligence is another specific tort which is related with environmental pollution. Negligence
in ordinary understanding is the failure to exercise the necessary care which has to be taken in
any given circumstances. Where there is a duty to take care, proper care has to be taken to
avoid the physical injury to any person or property. Causal relation has to be shown by the
plaintiff to prove the relation between negligence of the defendant and the damage caused to
the plaintiff. In an action for negligence, the plaintiff must show that, the defendant was
under the duty of taking good care to avoid the damage complained of, there is actually some
breach of this duty has happened in the part of defendant, the breach of that duty had caused
damage to the plaintiff.

There may be situation where the act of negligence can also be regarded as a nuisance, even
at times it may also be considered as a breach of the rule of strict liability, especially if the
negligent act of the defendant brings anything dangerous to the environment.

In Greyhound Corporation v. Blackley20 case, it was decided that the emission of deadly
carbon monoxide particle was under control of defendant, hence suit can be brought against
him. Much discussion regarding tortuous liability in relation to environmental pollution has
been done in Mukesh Textile Mills v H. R. Subramanya Shastri 21 case; in this case common
law action for negligence was applied to prevent environmental pollution. Collapse of the
muddy tank (filled with sugar factory by-product molasses) into the water channel linked
with respondent’s paddy field and subsequent damage of his crops was decidedly because of
the negligent action from the part of respondent.

Doctrine of Strict Liability and Environmental pollution

Strict Liability doctrine can be defined as the acts or omissions which are held liable without
the mens rea (mental intent). It is a standard for liability which may exist in either a criminal
or civil context. A rule specifying strict liability makes a person legally responsible for the
20
(1958) 262 F 2nd 401.
21
AIR 1987 Kant 87.
damage and loss caused by his or her acts and omissions regardless of culpability including
the fault in criminal law. In tort law, strict liability is the imposition of liability on a party
without a finding of fault (such as negligence or tortious intent). The claimant need only
prove that the tort occurred and that the defendant was responsible.

In criminal law, strict liability is liability for which mens rea (Latin for “guilty mind”) does
not have to be proven in relation to one or more elements comprising the actus reus (Latin for
“guilty act”) although intention, recklessness or knowledge may be required in relation to
other elements of the offence. The liability is said to be strict because defendants will be
convicted even though they were genuinely ignorant of one or more factors that made their
acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e.
there is not even criminal negligence, the least blameworthy level of mens rea. These laws
are applied either in regulatory offences enforcing social behaviour where minimal stigma
attaches to a person upon conviction, or where society is concerned with the prevention of
harm, and wishes to maximize the deterrent value of the offence.

The ‘doctrine of strict liability’ in relation to environmental obligation had been pronounced
in Rylands v. fletcher22 case, in which Blackburn J. said that, “the person who for his own
purpose brings on his land and collects and keeps there anything likely to do a mischief if it
escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all
the damage, which is the natural consequence of its escape.” This proposes the basic idea of
‘doctrine of strict liability’, according to which the liability on part of the defendant is very
significant in relation to cases arising from the environmental pollution, because it has been
applied to a variety of things, like fire, gas, explosives, electricity, noise, noxious fumes,
colliery spoil, poisonous vegetation etc. The rule will be applicable in cases of injuries caused
to the person or the property; but the liability was applicable only when there is an escape of
noxious substance from the land of the defendant. On appeal this principle of liability without
fault was confirmed by the House of Lords but limited to non- natural users. Thus,
corporations that handle water, electricity, oil, noxious fumes, colliery spoil and poisonous
vegetation are covered by this doctrine. Negligence of the victims is no excuse. The doctrine
also operates as a loss-distribution mechanism: The person indulging in such hazardous
activities (usually a corporation) being in the best position to spread the loss through
insurance and higher prices of its products. However, later decisions in England diluted the
principle by introducing several exceptions, which used to reduce the scope of its
applicability effectively in case of environmental damage.
The exceptions that are applicable for ‘strict liability’ are:
(i) An act of God (natural disaster like flood or earthquake or Sunami);
(ii) the act in which a third party is involved (sabotage etc.);
(iii) the plaintiff’s own fault; (iv) done with plaintiff’s consent;
(iv) natural use of the land by defendant (strict liability is applicable only in case of
non-natural users);
(v) statutory authority.

22
(1868) LR 3 HC 330.
The Shriram judgment23 categorically said that such exceptions would not be applicable in
India. The present verdict further emphasizes this point and expands its scope.

In the Union of India vs Prabhakaran,24 where the Supreme Court had extended its cover to
public utilities like the railways, electricity distribution companies, public corporations and
local bodies “which may be social utility undertakings not working for private profit”. In this
case a woman fell on a railway track and was fatally run over. Her husband demanded
compensation. The railways argued that she was negligent as she tried to board a moving
train. The Supreme Court rejected this contention and said that her “contributory negligence”
should not be considered in such untoward incidents — the railways have “strict liability”.
The Supreme Court had applied this doctrine to the electricity mishaps. An electric wire had
snapped and fallen on the road. On a rainy night, a cyclist came in contact with it. He died on
the spot. His widow demanded damages from the electricity authorities, MP State Electricity
Board v. Shail Kumari.25 The board argued that the wire belonged to a pilferer and that it was
not negligent. Rejecting this contention, the Supreme Court said: “It is no defense on the part
of the board that somebody committed mischief by siphoning off energy to his private
property and the electrocution was from such diverted line… Authorities manning such
dangerous commodities have extra duty to chalk out measures to prevent such mishaps.” The
basis of the liability is the “foreseeable risk inherent in the very nature of such activity”.

Doctrine of Absolute Liability

Rejecting this kind of provisions, Indian Supreme Court suggested that “we have to develop
our own law and if we find that is necessary to construct a new principle of liability to deal
with unusual situation……..on account of hazardous or inherently dangerous industry……we
should not hesitate to evolve principle of liability”.26 In more clearer language, Chief Justice
Bhagwati said that, “the enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or inherently
dangerous nature of the activity which is undertaken. The enterprise must be held to be under
an obligation to provide that the hazardous or inherently dangerous activity which it is
engaged must be conducted with the highest standards of safety and if any harm results on
account of such activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to say that it had taken all reasonable care and that the harm
without negligence on its part.27 He further explained that such industry must be held strictly
and absolutely liable for causing harm as a part of social cost for carrying on hazardous or
inherently dangerous activity. In the current case, there was a leakage of toxic oleum gas
from Sriram food and Fertilizer Industry, as a result of which several people fell ill due to
23
See next section for ‘Doctrine of Absolute Liability.’
24
(2008) 9 SCC 527
25
AIR 2002 SC 551
26
MC Mehta v. Union of India, (1997) 2 SCC 353.
27
MC Mehta v. Union of India, (1987) 1 SCC 395.
inhalation of the toxic gas; hence the industry held liable with the charge of ‘absolute
liability.’ The basis of liability of such a kind got approval of Justice Ranganath Mishra in the
case of Union carbide Corporation v. Union of India28 (Bhopal gas leakage disaster case).

As the case of M.C. Mehta reads, it is clearly stated that the ‘ratio’29 of the case is “Courts
shall order authorities for enforcement of fundamental rights of citizens and to protect
fundamental rights of people.” The principle of absolute liability is to be considered here as a
obiter,30 as it was justice Bhagwati with 4 other respected judges, constituted this rule, it is
not cited under the ratio of the case. Going by the common law practice and the judicial
interpretation, the absolute liability principle is not binding on the courts and not on Supreme
Court itself. The observation just made has two-fold consequences, one that their does not
exist a principle called absolute liability in India if we go by strict common law terms, as the
principle was so given by judges in the oleum gas leak case was an obiter, then we cannot
accept the very fact that it is binding concept. On the other hand the very recognition of the
rule by Supreme Court in different cases and also by various high courts in their judgments, it
is clear that to an extent judiciary in India has recognized this very concept, also Supreme
Court in Indian Council for Environmental Legal Action v. Union of India,31 held that the rule
of absolute liability established in M.C.Mehta case was not obiter and is appropriate and
suited the conditions of our country. Thus, we can conclude that although going by a
technical sense, the very rule comes under obiter, but by Supreme Court interpretation it
makes absolute liability principle an established principle.

Difference between ‘doctrine of strict liability’ and ‘doctrine of absolute liability’

A clear distinction between Strict and Absolute liability rule was laid down by SC in
M.C.Mehta v. Union of India, giving four basic points for it:
(i) only those enterprises will be liable which are betrothed in hazardous or inherently
dangerous activity, this implies that other industries not falling in the ambit stated
above, will be covered under Strict liability rule;
(ii) the escape of a dangerous thing from one’s land is not necessary, which means
that the rule will be applicable to those injured within the premise and person
outside the premise;
(iii) rule doesn’t have an exception, which is provided in rule of Strict Liability; and
(iv) the quantum of damages depends on the magnitude and financial capability of the
enterprise.

Other cases in relation to liability doctrines:

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

28
1994 Supp (3) SCC 328.
29
‘Ratio’ of a case is, underlying and core principle of the law upon which a case is decided.
30
‘Obiter’ of a Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion
expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or collaterally, and not
directly upon the question before the court or upon a point not necessarily involved in the determination of the
cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent.
31
AIR 1996 SC 1446.
Jagdish v. Naresh Soni, (2007) 3 MPHT 234.
Mustaq Ahmed v. State of Jammu and Kashmir, AIR 2009 J and K 29.

 Criminal Proceedings
1. Section 268, 269, 270, 277, 278, 284, 285 and 286.
2. Section 133 of Cr.P.C. and petitions thereunder
3. Penalties and Procedure under Chapter VII of Water Act 1974 and Chapter VI
of Air Act 1981.
 Civil Suits under section 91 of C.P.C. (Form 36)

Magnitude of environmental degradation

 Environmental pollution is mostly man-made. Damages made to all the components
of environment, like atmosphere, water, air, land; as a result, life of all living
creatures including human being faces problems.
 Globally it is seen that air is heavily polluted by the release of ‘Green House Gases’
and more than 65,000 other compounds. Consequences are destruction of ozone layer,
global warming, increase in cancer and tropical diseases, rising of sea level by
melting of glaciers, submersion of many small islands and flooding of low-lying
coastal areas causing loss of resources.
 According to US National Air Quality Emission Trend Report of 1988, almost 80
million people living in countries where ozone level is not up to air quality standard,
more than 60 million people breathe too much carbon-di-oxide, vehicular and
industrial air pollution is reaching in life threatening levels.
 World’s worst air pollution is caused by wood smoke and animal dung smoke used
for cooking in sub-Saharan Africa and South Asian countries.
 Polluted rivers, lakes, and dams are seriously affecting fishes and other water flora
and fauna. In India 20 high altitude lakes like Nainital, Bhimtal, Dal, Wular, Pushkar,
Husain Sagar, Ooty are badly affected. All major rivers in India like Ganga, Narmada,
Godavari, Krishna, Cauveri are highly polluted.
 Globally 15% ot total soil earth surface has undergone human induced soil
degradation. Large scale geological changes happening on earth due to large scale
man-made modifications like mineral extractions, building of cities, highrise
buildings, roads, water reservoirs etc.
 According to an estimate of Ministry of Agriculture 175 million hectares of India’s
land area is subject to human induced environmental pollution. The non-
biodegradable chlorinated hydrocarbons like DDT, Polychlorinated bi-phenyls,
hexachlorobenzene compounds now form an integral part of the biological, geological
and chemical cycles of earth.
 Of the natural resources the forests are being eroded most ruthlessly. More than 17
million hectares of forests are destroyed yearly the world over; 70 % of world’s
forests have been destroyed in just 50 years.
 According to latest Red List of threatened species prepared by International Union for
Conservation of Nature (IUCN) 132 species of plants and animals are among the most
threatened category in India. In this list, 60 species of plants, 18 species of
 amphibians, 14 species of fishes, 15 species of birds and 10 species of animals are
included as critically endangered species.
 The above instances are only few among the huge visible and non-visible damages of
our environment. If the damages continue that will reach in an irreparable level. The
situation is complex and protection process is difficult, but this issue has to be taken
on a priority basis.

Main causes of environmental pollution

 Population Growth
 Close relation is there between human population increase and environmental
pollution.
 Impact of any human group on environment can be calculated by the
following formula: Impact = Population X Affluence X Technology
 Conceptually population, affluence (per capita consumption of goods and
resources), and technology of production these three factors have direct
proportional impact on environmental crisis.
 Population growth among these factors is most important as it increases the
resource consumption and puts direct pressure on earth’s finite resources.
 World population has increased drastically in last three centuries, now world
population has crossed 7 million mark (in March 2012), out of that a big
chunk is added in the developing countries. India has 16% of world’s
population (1.252 billion in 2013).
 Population increase means need of more houses, more food grains, more
drinking water, more clothing, and more vehicles requiring more fossil fuel
and so on.
 Increased general affluence and economic growth
 Affluence is another important factor affecting man-resource-environment
relationship; increased demand from rich people requires increase the demand
of goods and services in developed and developing countries and caused
 Urbanization and industrialization
 Rapid and unplanned urbanization is one of the factors for environmental
pollution and degradation.
 Shifting of people from villages to metro cities causes increase in number of
slums in cities, which contributes significantly in environmental pollution.
 The Centre for Science and Environment in its fifth report (1999) mentioned
that “India is facing a total collapse of urban environment. While industrial
cities like Ludhiana and Tiruppur are drawing in toxic wastes and industrial
pollution, non-industrial towns like Aligarh and Bhagalpur are swamped with
domestic wastes……people are turning more to the use of ground water,
depleting and polluting its reserve, rivers and streams that pass through towns
are turning toxic.”32
 Central Pollution Control Board (CPCB) found in about 80% of cities in India
at least one criteria of pollutant exceeded the annual average ambient air
32
State of India’s Environment, The Citizen’s Fifth Report (1999), at p.207
 quality standards, which will have serious public health implications. 33
Pollution levels in cities like Ahmedabad, Varanasi, Chennai, Pune and
Kolkata have a reducing trend (as seen from 2002 to 2007), but it has an
increasing trend in Mumbai, Faridabad, Lucknow, Bangalore and Delhi.34
 India’s per capita fresh water resources have decreased from 1845 cubic meter
in 2007 from 6042 cubic meter in 1947, it will drop to 1000 cubic meter by the
end of the century, according to a report by CPBC; it also mentioned that
Indian cities produce waste-water of about 38 billion litres every day, of which
only 29% is getting treated; raw sewage and industrial waste usually goes into
the rivers, more than 50% of river’s water is not fit for drinking.35
 Natural resources are used by industries, so it destroys nature and affects
natural environment, for example, natural resources are used in cotton, textile,
paper, iron, coal, oil, fodder, plywood, soap, sugar, tobacco, food processing,
rayon, rubber industries. Residues and wastes of industries pollute water and
land, requires huge resource for treatment. Any industry requires energy
supply, which causes depletion of fossil fuel, also environmental pollution
happens from smoke and radioactive substances. Noise pollution can be
another effect of industrialization, which can be taken care off.

Principles related with Environmental Policies

Sustainable Development
‘Right to sustainable development’ is seen as principle under the purview of Constitutional
‘right to life’. Judicial decisions had given interpretation in certain cases in favour of that.
In N.D. Jayal v. Union of India36 case, Supreme Court provided even wider an interpretation
of ‘right to life’ under Article 21, it is suggested that ‘right to environment’ is a fundamental
right of every citizen so as the ‘right to sustainable development’, at times it is found that
right to sustainable development becomes the integral part of ‘right to life’. ‘Right to
sustainable development’ includes much wider aspect of overall economic growth and
development of a community or a country, hence the importance has to be judged carefully
while compared with the fundamental right of any individual. In this case petition was for the
proper safety test of the Tehri dam and hydel power project and for the rehabilitation aspect
of the migrants. Court said, that the right to health, and clean & healthy environment is a
fundamental right under Article 21 of the constitution, the petition succeeded and to take care
of the safety aspect, 3-D Non-Linear Analysis and Dam Break Analysis were recommended
by the Committee of Experts.

33
State of Air Pollution in Indian Cities, Centre for Science and Environment, available online at
http://www.cseindia.org/node/207 (accessed on 25.05.2015).
34
Id.
35
Archana Chaoudhary, More than half of India’s rivers too polluted for drinking water, LiveMint, August,
2013, available at http://www.livemint.com/Politics/PaYR6kB1IQOSKnEhf19jpL/More-than-half-of-Indias-
rivers-too-polluted-for-drinking-w.html (accessed on 25.05.2015).
36
(2003) 6 SCC 573
There are several international conventions, which emphasis on the importance of sustainable
development. For example, the Stockholm Declaration, 37 which refers to the balance between
the environmental protection and the economic development, says that in order to provide the
maximum benefit to the people, the States should integrate economic development with
protection of the environment.38 While the States have a sovereign right to use their own
natural resources, they must ensure that such use does not adversely affect the environment of
neighbourhood States.39 Furthermore, the World Charter for Nature 40 mentions about the
importance of environmental protection in the economic development. It however
emphasizes on the specific principles of environmental protection, which are designed to
guide the economic development. Finally, the Rio Declaration 41 emphasizes on the principles
in the Stockholm Declaration. It states that States must apply the ‘precautionary principle’ in
balancing between the economic development and the environmental protection. 42

In 1990, the Economic Commission for Europe (ECE) of the UN convened a conference, in
which the non-binding declaration on environmental protection was agreed, known as Bergen
Declaration. Bergen Declaration had drawn an interrelation between the ‘sustainable
development principle’ and the ‘precautionary principle’. In the Bergen Declaration it is said
that, “In order to achieve sustainable development, policies must be based on the
precautionary principle. Environmental measures must anticipate, prevent and attack the
causes of environmental degradation. Where there are threats of serious or irreversible
damage, lack of full scientific certainty should not be used as a reason for postposing
measures to prevent environmental degradation. ”

Precautionary Principle
‘Precautionary principle’ in relation to environmental law had emerged based on the fact that,
pollution in one geographical place or area may affect the environment of other geographical
areas, so it is better to foresee the problems and to take ‘risk management’ kind of approach,
so that pollution would not affect to the other areas. ‘Precautionary principle’ is a rule of
evidence and deals with the burden of proof in environmental cases. This principle shifts the
burden of proof to the polluter, hence the polluter has to prove that his activity (personal or
industrial) is not a health hazard.
Earlier the principle of ‘assimilative capacity’ was prevailing, this ‘assimilative capacity’
principle was provided by the Principle 6 of Stockholm Declaration, 1972, 43 this principle
stated that, “science could provide policy makers with the information and means necessary
to avoid encroaching upon the capacity of the environment to assimilate impacts and it is
presumed that relevant technical expertise would be available when environmental harm was
predicted and there would be sufficient time to act in order to avoid such harm.” According

37
See Annex I.
38
Principle 13 of The Stockholm Declaration, see Annex I.
39
Principle 21 of The Stockholm Declaration, see Annex I.
40
See Annex II.
41
See Annex III.
42
Principle 15 of the Rio Declaration, see Annex III.
43
See Annex I.
to this theory, it was the duty of policy makers to find out the possible negative impact on
environment of any public or private activity, and to formulate such policies to decrease or
prevent such negative impact.
‘Precautionary principle’ originated in Germany as one of the basic principles of
environmental policy; and discussed later on a number of times during the discussion on issue
of ‘protection of North Sea’.44 The word precaution was not used until the second conference
in London, in 1987; where a precise reference to the necessity of a ‘precautionary approach’
is made. This required action to be taken to regulate inputs of the “most dangerous
substances (...) even before a causal link has been established by absolutely clear scientific
evidence.” By 1990, at the third conference in Hague, the parties declared that they “ will
continue to apply the precautionary principle that is to take action to avoid potentially
damaging impacts of substances that are persistent, toxic and liable to bio-accumulate even
when there is no scientific evidence to prove that a causal link between emissions and
effects.” The ‘precautionary principle’ was highlighted also by 11 th Principle of the U.N.
General Assembly Resolution on World Charter for Nature, 198245 as a substitute of
‘assimilative principle.’
At the 1992 United Nations Conference on Environment and Development (UNCED) in Rio
de Janeiro, this is believed to be caused by the fear of the influence of the principle on the
discussion of measures against the greenhouse effect. According to the USA, the fact that
there was not sufficient scientific evidence for the causal relationship between human
behaviour and the greenhouse effect meant that taking expensive measures was not
acceptable. Other states were more willing to take a precautionary approach as they suspected
that waiting for proof might result in irreversible harm. In the (non-binding) Rio Declaration
of 1992, Principle 15 said: “In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities. 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.” Again, the
scope of the precautionary principle is limited to damage which is either serious or
irreversible. Yet another limitation is that, the measures which are to prevent possible
damages are to be cost-effective. As the whole idea of precaution is linked with the notion
that preventing damages is often less expensive than cleaning up afterwards, this new element
seems to be reasonable. However, it is to be kept in mind that we are talking about damages
of which it is uncertain if they will occur or not, first of all. Secondly, it will often be
uncertain how serious the possible damage might be. Bearing this in mind, the cost-
effectiveness examination could be understood to imply that the more serious the possible
damages might be, the more is to be spend on precautionary measures. The inability to prove
how much mankind will gain from taking specific precautionary measures should not stand in
the way of taking measures though.

44
The protection of the North Sea was discussed at a number of international conferences held in Bremen
(1984), London (1987), The Hague (1990) and Esbjerg (1995); See for the text of the Declarations on
Conclusions: Ministry of Environment and Energy, Danish Environmental Protection Agency, Ministerial
Declarations and Esbjerg Declaration, Copenhagen, 1995.
45
See Annex II.
In the 1990s, more and more binding international treaties contain references to the
precautionary principle. One important treaty which does so, is the Treaty on the European
Union, otherwise known as the Treaty of Maastricht. In the EC Treaty, Article 2 expressly
calls for “an economic growth which is both sustainable and respects the environment.
Strangely enough, the wording sustainable growth is employed, instead of the more common
expression sustainable development.” Another new feature of the EC Treaty is the fact that in
Article 130 R, the precautionary principle is added to the list of environmental principles. The
text of this article now reads as follows:
“1. Community policy on the environment shall contribute to pursuit of the following
objectives: - preserving, protecting and improving the quality of the environment; -
protecting human health; - prudent and rational utilization of natural resources; - promoting
measures at international level to deal with regional or worldwide environmental problems.
2. Community policy on the environment shall aim at a high level of protection taking into
account the diversity of situations in the various regions of the Community. It shall be based
on the precautionary principle and on the principles that preventative action should be taken,
that environmental damage should as a priority be rectified at source and that the polluter
should pay. Environmental protection requirements must be integrated into the definition and
implementation of other Community policies. In this context, harmonization measures
answering these requirements shall include, where appropriate, a safeguard clause allowing
Member States to take provisional measures, for non-economic environmental reasons,
subject to a Community inspection procedure.
3. In preparing its policy on the environment, the Community shall take account of: -
available scientific and technical data; - environmental conditions in the various regions of
the Community; - the potential benefits and costs of action or lack of action; - the economic
and social development of the Community as a whole and the balanced development of its
region. (...)”
As the EC is a party to several treaties in which the precautionary principle is to be found,
and also signatory to the Bergen Declaration discussed above, one might assume that the
definitions employed there also apply to the EC.
The ECE Convention on the protection and use of transboundary watercourses and
international lakes, Helsinki Convention 1992 (Helsinki, 1992) underlines the importance of
precaution at several stages. First of all, the parties to it shall take all appropriate measures to
prevent, control and reduce pollution of waters causing or likely to cause transboundary
impact (Article 2(2)(a), emphasis added). Secondly, Article 2(5)(a) expressly states that in
taking the measures called for, the parties "shall be guided by" a number of principles. The
first one to be mentioned is the precautionary principle, by virtue of which action to avoid the
potential transboundary impact of the release of hazardous substances shall not be postponed
on the ground that scientific research has not fully proved a causal link between those
substances, on the one hand, and the potential transboundary impact, on the other hand. The
Helsinki Convention thus employs a definition with a broader scope than the Rio and Bergen
Declaration, as it does not limit itself to serious or irreversible damage.

Indian Supreme Court also adopted the ‘precautionary principle’ but in a modified form. The
Court adopting the principle explained that this principle has led to the special principle of
burden of proof in environmental cases where burden ad to the absence of injurious effect of
the actions proposed is placed on those who want to change the status quo. The person who
wants to maintain status quo by maintaining a less polluted state should not carry the burden
of proof and the party who wants to alter it by carrying on some activity must bear this
burden. In case insufficient proof is presented in the Court, the Court will take decision in
favour of environmental protection and the activity would not be allowed to operate in favour
of environmental protection and the activity would not be allowed to operate. Currently
Supreme Court has suggested the appellate authority to appoint Technical Members, who will
be well versed in the environmental laws and will have special knowledge in scientific and
technical fields related to environmental science/management. This is discussed in case of
A.P. Pollution Control Board v. Prof. M.V. Nayadu,46 and Fertilizers and Chemicals
Travancore Ltd. Employees Association V. Law Society of India 47 which can be seen for
reference.

Polluter Pays Principle

According to The United Nations Environmental Programme, “The ‘polluter pays principle’
(PPP) states that whoever is responsible for damage to the environment should bear the costs
associated with it.” It is usually seen that people are afraid of burden of fines incurred in
different and hence they stop themselves from Policies cased on PPP should enable us to
protect the environment. Environmentalists define a polluter, not as someone harming others,
but as someone who is simply using his own property and resources in a way that harm the
environment. Because, in such cases, there are no victims to compensate, the amount to be
paid is determined by the extent to which it will deter the politically disfavored activity. The
payment (whether there are real victims or not) typically goes to the government in the form
of a tax. Since the environment cannot be compensated directly, this makes for an excuse to
impose taxes on the offending parties, which, of course are to be used to “undo the
damage.”48 In such cases, the PPP is used to promote an environmental agenda rather than to
insure that real polluters pay compensation to real victims of their activities. Closely tied to
the PPP are policies typically grouped under the heading of ‘market based’ or ‘economic’
instruments, which are broken down into two categories, taxes and tradable permits. Both are
seen as attempts to ‘make the polluter pay’ by attaching a fee to the polluting activities.
Theoretically, by making polluters pay, law is forcing them to take into consideration the
pollution costs linked with their production activities. This encourages the more effective use
of resources generally, while providing an incentive for polluters to find the lowest cost
methods, such as for reducing emissions. Around the world, the PPP is being invoked as a
justification to encourage recycling in solid waste disposal and discourage the use of virgin
materials — trees for paper, petroleum for plastics, iron for steel, etc. — in manufacturing.
Proposals range from taxing the use of packaging materials, such as glass and paper products,
to establishing tradable permit programs based on an overall recycled-content standard for
certain kinds of manufacturing. In advocating such proposals, it is simply asserted that not

46
(1992) 2 SCC 718, AIR 1999 SC 812.
47
(2004) 4 SCC 420.
48
Duncan Austin, Economic Instruments for Pollution Control and Prevention — A Brief Overview, World
Resources Institute, September 1999.
recycling, i.e., using landfills or incinerating waste, is by definition “damaging to the
environment.” Therefore, those who choose non-recycling methods of waste disposal or use
non-recycled materials in production are said to be contributing to pollution problems and
must be forced to pay. But saying that the use of virgin materials alters nature and therefore
“imposes costs on the environment” fails to establish that anyone is hurt, or, if they are hurt,
the amount of injury they suffer. Therefore, the goal of these proposals seems to have nothing
to do with identifying polluters and their victims and arranging compensation. Instead, it is
simply to reduce the use of virgin materials, landfills and burning for its own sake. PPP had
its recommendation first by OECD in 1972 and also found to be mentioned in First
Environmental Action Program of EU (1973-1976). In 1975 EC recommended regarding cost
allocation by public authorities on environmental matters. Article 191(2) of EC Treaty,
198749 and Principle 16 of Rio Declaration,50 1992 has this principle mentioned.

In Indian Council for Enviro-Legal Action v. Union of India,51 the PPP was explained as
following:
“Once the activity carried on is hazardous or inherently dangerous, the person carrying on
such activity is liable to make the loss caused to any other person by his activity irrespective
of the fact whether he took reasonable care while carrying on his activity.
(a) The polluting industry is absolutely liable to compensate for harm caused to
environment,
(b) He is also liable to pay the cost of restoring the environmental degradation –
reversing the damaged ecology.”
Thus, Supreme Court of India puts the ‘absolute liability’ for the harm to the environment.
Hence, it becomes a principle of remediation of the damaged environment – a part of the
sustainable development. The Supreme Court explained again PPP and went into its finer
aspects in the case of Deepak nitrite Ltd. V. State of Gujrat.52 The Court stated that the
amount of awarded compensation must have some correlation with magnitude of risk, also
with the capacity of the company and the actual harm caused by it. PPP can be applied when
some damage to the environment has been seen, without which application of this principle is
not possible. In this case this principle was applicable as the effluents discharged by the
industries in Gujrat Development Corporation Estate of Nandesari was more than the
parameters fixed by the Gujrat Pollution Board. Justice Saghir Ahmed of Supreme Court
said, “Pollution is a civil wrong. By its very nature, it is a tort committed against the
community as a whole. A person, therefore, who is guilty of causing pollution has to pay
damages (compensation) for restoration of the environment and ecology. In addition to
damages, the person guilty of causing pollution can also be held liable to pay exemplary
damages, so that it may act as a deterrent for others not to cause pollution in any manner.”

49
See Annex IV.
50
See Annex III.
51
(1996) 3 SCC 212.
52
(2004) 6 SCC 402.
Exemplary Damages: Courts in India has many a times awarded ‘exemplary damages’ by
using PPP in addition to the award of normal damages. Supreme Court declared that Court
has power to award ‘exemplary damages’ under Article 32 of Constitution. 53 The Supreme
Court added that, “the person held guilty of causing pollution can be held liable to pay
‘exemplary damages’ so it may act as deterrent for others not to cause pollution.” In M.C.
Mehta v. Kamal Nath,54 Supreme Court imposed an ‘exemplary damage’ of 10 lakh rupees on
Span Motel Limited along with bearing a fair share of the project cost of the ecological
restoration; because they found guilty of interfering with the natural flow of a water and thus
disturbing the environment and ecology of the area.

Various State High Courts also have exercised their power under Article 226 and awarded
several significant decisions to protect and improve the environment. In Rampal v. State of
Rajasthan,55 the High Court issued a writ of mandamus against the Municipal Board of
Mandal of Bhilwara district to abide by the provisions of the Rajasthan Municipalities Act,
1959 and to clean the streets, public places, sewers; to remove the noxious and offensive
matter; and to construct drain and sewers.

Public Trust Doctrine

Public Trust Doctrine (PTD) is the principle that says, the resources like air, water etc. are
preserved for public use and that the government is required to maintain them for the public’s
reasonable use. PTD operates as a right guaranteeing the access to property, whether owned
privately or held by the state or unowned. Origin of PTD is found in the Justinian Code of
sixth century Rome – as the ‘doctrine of res communes’ – which said that some things are
“common to mankind - the air, running water, the sea, and consequently the shores of the sea
and the right of fishing in a port, or in rivers, is common to all men.”56 Res communes were
excluded from private control and the trustee was charged with the duty of preserving the
resources in a manner that made them available for certain public purposes. Whether formal
law or moral imperative, the concept that certain resources are common to all is prevalent
today in such diverse areas as the open sea, wildlife, parks, historic monuments, and the
electromagnetic spectrum. In England, this concept appears in the common law, particularly
through the writings of Bracton and Flecta, England’s Magna Carta, and commentary by
Blackstone. These sources are cited as precedent for the notions of common rights to
navigation and fishing, but again questions arise over whether these statements accurately
reflect the practices of the time given the prevalence of private fisheries; Paragraph 5 of the
Magna Carta made explicit reference to the guardianship of land extending the guardianship
to houses, parks, fish ponds, tanks, mills and other things pertaining to land.57

53
In M.C.Mehta v. Kamal Nath, (2000) 6 SCC 213.
54
(2000) 6 SCC 213.
55
AIR 1981 Raj. 121.
56
Joseph L. Sax, Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan
Law Review, 68:471 (1970).
57
Kameri-Mbote P., Comment: The use of the Public Trust Doctrine in Environmental Law, Law Environment
and Development Journal, 2007, Vol 3/2, p. 195.
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 PTD 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 Nath58 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
58
(2000) 6 SCC 213.
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.

The second case on this subject is Majra Singh v Indian Oil Corporation,59 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,60 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
59
AIR 1999 J K 81.
60
(1999) 6 SCC 464.
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 built 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.

Environmental Impact Assessment

Environmental Impact Assessment (EIA) is a process of evaluation of the impact of an action

on the environment, which is required to be used as a tool in decision making. It essentially
reconcile development values and environmental values with ‘sustainable development’ as an
aim. The development of EIA is started in 1969 with the enactment of National
Environmental Policy Act (NEPA). In 1977-78 the Department of Science and technology
started getting concerned about the environmental appraisal of the river valley projects. In
1986, the concept is consolidated by the enactment of Environment Protection Act; also
procedures of EIA was institutionalized by this time. The Central Government, under s. 3(1)
and s. 3(2) of Environmental Protection Act, 1986 and under Rule 5(3)(a) of the
Environmental Protection Rules, 1986, issued a draft notification laying down the norms and
procedures of impact assessment; first notification was issued in 1992, followed by final
notification in 1994.

Legal Procedure for Clearance under Draft Notification of 1992

As per this notification, the expansion or modernization of any existing industry, or the
establishment of new projects shall not be undertaken without obtaining an environmental
clearance from the Central Government and the State Governments respectively. An
application need to be submitted to the appropriate authority, which should include an EIA
Report and an Environmental Management Plan (EMP) prepared in accordance with the
guideline issued by the Central Government. These reports are to be assessed by the Impact
Assessment Agency (IAA). IAA then usually provide the recommendations based on
technical assessments of documents, data furnished by project authorities, supplemented by
data collected by visit to the sites of factory and interaction with the affected people and
environmental groups. Clearance is then given subject to IAA recommendations.

Procedure under Draft Notification of 1994

As per the 1994 notification, 30 types of industries scheduled therein have to obtain the
environmental clearance from the Government of India.61 Any organization, which desires to
undertake any new project or expansion or modernization of any existing industry or project,
with investment of more than Rs.5 crores, requires conducting an environmental impact
assessment. These projects require an environmental clearance from the central government.
The clearance granted is valid for a period of five years from commencement of the
construction or operation of the project. No construction work, preliminary or otherwise,
relating to the set-up of the project may be undertaken till the environmental and/or site
clearance is obtained.

One practical example is cited here for comprehension of the different aspects of EIA. 62
Please find the following Box 163 and Table 164 for the example.

61
See Annex V.
62
Refer to An India Case Study on CEIA for proposed Natural Gas-Based Power Plant, Produced for AED’s
training program under the USAID SARI/Energy project, by the School of Environmental Management and
Sustainable Development (schEMS) in Nepal, with support from IRG Systems South Asia, available online at
http://www.sari-energy.org/training/eia/course_files/casestudies/INDIA_CASESTUDY3_natural_gas_based_power_plant.pdf (accessed
on 22.06.2015).
63
Text used in Box 1 is taken from the above mentioned study, see FN32.
64
Data used in Table 1 is taken from the above mentioned study, see FN32.
Box1Case Study: EIA for a Proposed Natural Gas-Based Power
Plant

The identified parameters have been distributed into four major categories, viz. Ecology, Environmental
pollution, Aesthetics, and Human interest. A score of 1000 has been divided into each of these
categories. The resultant numerical evaluation has been described.

Possible Impact on Marine Ecology

Fly Ash: The dumping of fly ash slurry into the sea resulted not only into filing up of an extensive
portion of the bay but also into letting out of ash directly into the open sea. The ash, on being carried far
into the sea caused irreversible extensive damage to the sedimentary biota, Algel beds. Chank, Corals,
Pearl oysters, and to all the biota connected with Reefs.
Heavy Metal contamination: In the proposed power project, there is no usage of water and thereby
generation of effluent is negligible. Hence, the potential source of metallic contamination from the
effluents such as Cadmium, Lead, Zinc and Mercury is totally ruled out.
Oil Pollution: Normally, various activities responsible for oil pollution in the coastal environment are:
oil exploration, oil refining, oil transport, oil spills etc. In the proposed power project, none of the
activities are involved. The let-out water from compressor and waste oil generated are collected and sold
out to authorized dealers. Hence, the chance of oil pollution in the coastal region is eliminated.
Pesticide Pollution: There is no possibility of generation of effluents containing pesticides from the
operation of proposed project.
Microbiological Pollution: Sewage containing human excreta is the major source of pathogenic
bacteria. The state of the coastal waters is judged based on the number of E.coli present in it. In addition
to it, discharge of untreated domestic sewage, industrial wastes to the coastal waters are the factors
responsible for the microbiological pollution of coastal waters. At present, the domestic effluents
generated is around 21.5 MLD only and the effluent will be suitably treated to meet the standard
prescribed by the statutory authorities before it is used for gardening within the industrial complex.

Environmental Pollution
The proposed project runs in eco-friendly manner by using Natural gas as a fuel and it will not generate
any trade effluent. The wastewater generated will come from the domestic usage, evaporative cooler,
WHRB etc. However, such effluents will be treated to meet the standard. The effect on ambient air
quality will be minimum. Natural gas will not contribute to the suspended particulates. A marginal
increase in the gaseous pollutants such as SO2 and NOx, is expected. The proposed project does not
have any impact over the land use and on the buffer zone. The proposed project does not have any
impact on the soil chemistry, soil erosion, and soil fertility. Noise pollution due to the movement of
vehicles during construction activities is expected. However, the following measures will minimize the
noise level: (i) Maintenance of vehicle, plying in the project area; (ii) Development of thick canopy of
plantation around project premises; (iii) Installment of modern generator with less noise.

Aesthetics
The proposed power plant will not change any topographic feature. The proposed greenbelt development
around the site will enhance the diversity of vegetation. Noise level will be marginally increased due to
increased activity. The anticipated composite effect due to the proposed power plant has a majority of
overall positive impacts from aesthetic point. Human Interest There will be a number of job
opportunities available to the local people during the constructional stage and after commissioning
qualified person belonging to this region will be given priority.
Table 1: Summary of environmental impact found in the previous case study
Potential Constructional Phase Operational Phase
Impact High Medium Low/No Positive High Medium Low/No Positive
areas Impact Impact Impact Impact Impact Impact impact Impact
Air Quality
SPM v V
S02 V V
NOx V V
CO V v
Water Environment
Water V V
availability
Ground V V
water quality
Surface V V
water quality
Noise
On site v V
Off site V V
Ecology
Flora V v
Fauna V v
Socio-economic Environment
Social v
fabric
Health v
Education v v
Infrastructure v v
Occupation v v
Pattern
Economy v v
Aesthetic
Scenery v v
Structure V V

Recent amendment has come into force through 2006 amendment, which superseded the
1994 notification. First, the decentralization of regulatory functions to State level
Environment Impact Assessment Agencies (SEIAAs). SEIAAs were to oversee smaller scale
projects (Category ‘B’) and the MOEF would continue to regulate larger scale projects
(Category ‘A’). Second, although the final regulatory approval would be decided by the
MOEF or the concerned SEIAA, they in turn were to base their approvals on the
recommendations of the State Expert Appraisal Committee (SEAC) and the Expert Appraisal
Committee (EAC) functioning in the MOEF. Third, the State Pollution Control Boards
(SPCB) or the Union Territory Pollution Control Committee (UTPCC) were given the
responsibility for conducting the public hearing, taking responsibility away from the project
proponents. These three changes were designed to make the appraisal process more
streamlined, transparent and independent of politicking. In Sterlite Industries (India) Ltd. v.
Union of India65 the Supreme Court discussed the specific grounds on which administrative
action involving the grant of environmental approval could be challenged. The grounds for
judicial review were illegality, irrationality and procedural impropriety. Thus the granting of
environmental approval by the competent authority outside the powers given to the authority
by law, would be grounds for illegality. If the decision were to suffer from Wednesbury
unreasonableness,66 the Court could interfere on grounds of irrationality. Last, an approval
can be challenged on the grounds that it has been granted in breach of proper procedure.
Nevertheless the Court has not restrained itself, in cases where it found that the SEAC had
recommended approvals without any application of mind.
Attempts at circumvention by breaking up land parcels so as to escape the minimum land
area cut off requirement of five hectares for the conduct of EIAs have also been addressed by
the Court. In Deepak Kumar v. State of Haryana and Ors,67 referring to the recommendations
of the Committee on Minor Minerals, the court underlined that state governments should be
discouraged from granting a mining license/lease to plots less than five hectares so as to
reduce circumvention and ensure sustainable mining. Further, where land is broken up into
smaller parcels, prior environmental approvals should be sought from the MOEF.
Other cases which can be referred in relation to this are as follows:
Gram Panchayat Navlakh v. Union of India;68 Utkarsh Mandal v. Union of India69 and
Samata and Forum of Sustainable Development v Union of India.70
The EIA process is India faces several critical challenges, the primary being the need for
greater transparency, ensuring accountability of regulators and improving the quality of
public participation. The Court’s interventions in various cases have sought to address each
of these challenges. The recent order to establish an independent national environmental
regulator to oversee the EIA process is a reflection of the Court’s frustration with the
piecemeal nature of policy reforms and an attempt to provide a clear institutional framework
for addressing the existing challenges. Although some may criticize this as an example of the
judiciary stepping into the policy sphere, nevertheless the Court’s commitment towards
making the EIA process more effective deserves to be applauded.

65
2013 AIR SCW 3231.
66
The Wednesbury principle means that only an administrative decision that is unreasonable to an extreme
degree can be brought under the legitimate scope of judicial review. The principle is generally considered as a
reason for courts not to interfere in administrative body decisions. Non-applicability of the principle would
imply that courts will be less hesitant in interfering in such decisions.
67
Special Leave Petition (Civil) No. 19628-19629 of 2009. Judgment of Supreme Court on February 27, 2012.
68
Public Interest Litigation No. 115 of 2010. Judgment of Bombay High Court on June 28, 2012.
69
Writ Petition (Civil) No. 9340 of 2009. Judgment of Delhi High Court on November 26, 2009.
70
5 Appeal No. 9 of 2011. Judgment of NGT (Southern Zone, Chennai) on December 13, 2013.
Environmental Audit
International Chamber of Commerce defines the ‘environmental audit’ as: “the systematic
examination of the interactions between any business operation and its surroundings. This
includes all emissions to air, land and water; legal restraints; the effects on the neighbouring
community, landscape and ecology; and the public’s perception of the operating company in
the local area…. Environmental audit does not stop at compliance with legislation. Nor is it a
‘green-washing’ public relation exercise…. Rather it is total strategic approach to the
organization’s activities.” The important features are that environmental auditing is a
management tool for evaluating environmental performance against specified objectives.
Environmental auditing is normally regarded as art of an overall environmental management
system and it is therefore not considered in isolation but as one of a series of regular audits to
assess improvements in performance. Environmental auditing has evolved over from being
primarily a scientific undertaking to one which now includes evaluation of compliance with
predetermined standards and emphasizes a management control system. It is a process of a
systematic, periodic and objective approach to investigating business operations. It starts
from an analysis of the construction of a plant, purchasing of building materials, processing,
recycling, control of waste, recycling and final disposal of end effluents. A series of questions
outlined on all stages of the enterprise and its processes are prepared; figures are put if
possible; and results are recorded. A report is then prepared with the good and bad points
highlighted to use as a baseline for the future audits. Environmental audit can be done by a
team of qualified auditors, either employees of the organization or the contractor personnel,
to determine whether the factory/organization is complying with the environmental laws and
regulations.

Environmental audits can be of different types:

1) Compliance audit: it used to make sure that the company is complying with all the rules
and regulation made by government or the implications of non-compliance.
2) Systems audit: tis put focus on whether systems used in a company is capable to manage
the environmental risks.
3) Treatment, storage and disposal facility audit: this type of audit is done to make sure that
hazardous materials used in the company is treated according to the rule of the government
throughout its life cycle, including its disposal.
4) Preventive measures audit: this kind of audit focuses on the steps to be taken to reduce the
risk to the company, its employees and the environment as a whole.
5) Appraisal audit: this audit is done for maintenance of specific standard in the factory as per
Government regulations and internal safety standard, which helps to get the Government
approval and also makes the working environment safer for all.
Advantages: Environmental auditing has many advantages. It encourages an organization to
examine its operations in a constructive manner and it’s the cornerstone of the Environmental
Management System. An initial audit giver the company management to understand the
baseline information and helps them to review time to time. This will provide them the basis
to make the environment policy statement, helps them in regular monitoring and allow them
to make changes towards the betterment if required. It will also makes the organization to
know about the Rules and Regulations and to be abide by relevant regulations.
Influence of International Environmental Jurisprudence

International environmental jurisprudence has immense influence in India’s current form of

legislature. There are many factors which led to the enactment of various legislature in India
for environmental

Stockholm Declaration, 1972

The first U.N. (international) Conference on Human Environment was held in June 1972 in
Stockholm, it declared that, ‘to defend and improve human environment for present and
future generations has become an imperative goal for mankind.’ Therefore, it called
governments and people of the world to put their efforts for the preservation and betterment
of human environment. 26 principles were put forward in this Conference which is called
Stockholm Declaration71 or Magna Carta on Human environment. Indian Prime Minister
Indira Gandhi was there to address the Conference, and raised her concern about the
ecological imbalances, environmental degradation and pollution problem. India, being one of
the signatories, had passed various legislation since then to protect the environment. It was
felt that the improvement and protection of environment needs a major initiative for well-
being of flora and fauna, including human being, and overall economic development of the
country. Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control
of Pollution) Act, 1981, Environment (Protection) Act, 1986, National Environment Tribunal
Act, 1985 were some of the important legislations enacted thenafter, with the aim of
environmental protection.

Rio Declaration, 1992

United Nations Conference on Environment and Development (UNCED), the ‘Earth

Summit’, was held in Rio de Janeiro, Brazil from June 3 to 14, 1992. The 1992 Earth Summit
was strategically structured by its organizers as a successor to the Stockholm Conference. In
considering whether to convene an Earth Summit, the United Nations General Assembly
noted that the earlier Stockholm Conference had recommended a follow-up meeting. Just as
UNCED itself was conceived as the successor to the Stockholm Conference, it was
anticipated that an “Earth Charter would be adopted at UNCED to build on the precursor
Stockholm Declaration.” During the negotiations, agreement on a ‘readable, understandable,
and accessible’ statement of fundamental principles proved to be unattainable. Consequently,
representatives of participating governments abandoned the title ‘Earth Charter’ in favor of
“Rio Declaration on Environment and Development.”

Among the more important way stations on the road from Stockholm to Rio was the World
Commission on Environment and Development (WCED or Brundtland Commission).
71
See Annex I.
Constituted by the UN General Assembly in 1983, the WCED consisted of twenty one
eminent individuals appointed in their personal capacities. Gro Harlem Brundtland, Prime
Minister of Norway, chaired the group. The Commission was charged with “proposing long-
term environmental strategies for achieving sustainable development to the year 2000 and
beyond.” Among other things, the Commission recommended that the United Nations
General Assembly “commit itself to preparing a universal Declaration and later a Convention
on environmental protection and sustainable development.” Although the term did not
originate with the Commission, the WCED's report attempted to define ‘sustainable
development’, a concept that permeated the Commission's report and subsequently became
the central theme of UNCED and the Rio Declaration: Sustainable development is
development that meets the needs of the present without compromising the ability of future
generations to meet their own needs. It contains within it two key concepts:
[1] the concept of ‘needs’, in particular the essential needs of the world’s poor, to which
overriding priority should be given; and
[2] the idea of limitations imposed by the state of technology and social organization on the
environment’s ability to meet present and future needs.
This central premise, which is far from intuitively obvious, is a postulate that has been
assumed rather than demonstrated. There is no international consensus on the meaning of
‘needs’, a fundamental component of the definition on which perspectives may vary around
the globe. There appears to be little or no empirical evidence to demonstrate that the needs of
both current and future generations, however modest they may be, can be met through
economic growth while concurrently satisfying the constraint of preserving environmental
capacities. This definition of sustainable development, moreover, presents a serious challenge
when applied to the operational reality of determining the ‘sustainability’ of a given proposal,
whether a discrete infrastructure project, such as a large dam, or a broader development
policy or program.

One significant piece of evidence for this perspective is Stockholm Principle 22, which
declares that, “States shall co-operate to develop further the international law regarding
liability and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such States to areas beyond their
jurisdiction.”

Stockholm Declaration anticipated a subsequent development in international law to advance

the 1972 Conference's central themes of environmental conservation and preservation,
enhancement of the integrity of environmental amenities, and mitigation of adverse
environmental effects. The Brundtland Commission expressly advanced this mandate by
forming a subsidiary group of thirteen environmental legal experts appointed in their personal
capacities.

The Experts Group on Environmental Law was charged not just with codifying existing legal
principles, but also with giving "special attention to legal principles and rules which ought to
be in place now or before the year 2000 to support environmental protection and sustainable
development within and among all States."35 Accordingly, the Experts Group produced a
text containing twenty-two general principles on such matters as an individual human right to
an adequate environment, transboundary pollution, intergenerational equity, environmental
impact assessment, international cooperation, exchange of information, notification, and prior
consultation. Collectively these principles were intended as elements for a draft convention
on environmental protection and sustainable development. The Experts Group clearly stated
that some of the principles proposed in that document could not be identified as current
customary practice, but instead indicate the direction in which the progressive evolution of
international law should be encouraged.

The organizers of UNCED initially conceived the Earth Charter in the tradition of a
hortatory, aspirational instrument intended to codify some, and to catalyze the necessary or
desirable maturation of other, international legal norms: “Even though the Earth Charter will
necessarily be limited to basic rules of conduct, it offers an opportunity to go beyond the
codification of norms already established by customary international law and to espouse
some of the more dynamic, forward-looking postulates.., now emerging in environmental
decision-making.”

Accordingly, the initial expectations for the Rio Declaration were that the instrument
establish ‘good practice standards’ by reference to the best and most progressive approaches
of the previous twenty years. The remainder of this Article examines the extent to which the
1992 Rio Declaration accomplishes this aim in eight of the more important areas that both
instruments address. Those areas are representative of evolutionary developments between
the two declarations:
(1) right to environment;
(2) transboundary pollution;
(3) intergenerational equity;
(4) environmental impact assessment;
(5) precautionary approaches;
(6) cooperation, exchange of information, notification, and prior consultation;
(7) trade and the Polluter Pays Principle; and
(8) public participation in environmental decision making.