CHAPTER- 1

Introduction:

The growing threats to our environment through developmental

activities have created an unprecedented crisis. It has resulted

in hazards for decent and healthy environment which is so crucial

for human existence. The world has come a long way since the

first historic effort to diagnose the global environment took

place at the UN Conference on Human Environment (Stockholm,

1972).1 The journey from the Stockholm Conference to the Earth

Summit at Rio de Janeiro has led to the recognition that "all

human beings are entitled to a healthy and productive life in

harmony. The growing awareness about unhampered development has

led to numerous international and national efforts to protect the

environment. Human beings are the primary victims of

environmental damage. Though there is no consensus at the

international level regarding securing a right to environment as

a fundamental human right, yet efforts have been made in some

national jurisdictions to recognize such a right. This right to

environment essentially emanates from the right to life, which is

the core of all fundamental human rights. The parameters of this

right in the various jurisdictions may be put differently, even

as the right itself is still in evolution. This emerging human

right, recognized primarily through judicial interpretations,

tends to offer a shield against the "developmental terrorism"

which is threatening to engulf humankind, among other species, on1

our fragile planet. The nascent right to Environment protection

is likely to be frowned upon in developed as well as developing

societies, as those seeking it may be dubbed anti-development.

The invoking and enforcement of this right has often become

controversial and difficult, as available mechanisms and judicial

responses are determining factors.

Problem:

The protection of Environment is no more just another issue.

Today, with the changing times of development and

industrialization, it has become a necessity and a part of the

legal and moral duty of every citizen to protect and improve the

environment around him. Therefore, the judiciary also has come

forward to play its role in the protection and improvement of

environment and developing a mandate not only for the individuals

but also for everyone else who is a citizen of India, being an

individual, organizations, body corporate or industrial houses.

The problem therefore arises that whether the judiciary through

its role is doing enough to protect and improve the environment

by its present approach and whether there are any differences in

the aggravated instances of various types of pollution and

degradation of the environment.

Rationale:

The basic rationale behind doing this research project is that it

is important to understand the reasons behind the environmental

2

laws in our country. A lot of degradation of the environment is

resulting in ecological imbalances and loss of natural resources

which is gravely affecting the flora and fauna of the planet,

resulting in Global Warming, Climate Change etc. Therefore, it

becomes important as a legal researcher to study in detail the

environmental pollution in India, the causes thereof the judicial

activism in environment related legislations. The judiciary has

played a very important role in the expansion of the scope of

environment protection in India by the manner of interpretation

of Constitutional Provisions.

Objectives:

The objectives of doing this research project are:

To study about the types and the causes of pollution in

India

To study in detail the Judicial Activism in Environmental

Legislation

To study in detail the various case laws which evolved the

environmental laws and doctrines in practice in India

To study the background of Environmental Legislations in

India and the International conventions on which they are

based.

3

Review of Literature:

1) Mamta Rao; Public Interest Litigation; Eastern Book Company;

Lucknow;2000

The researcher greatly got help to understand the various

important case laws and the judicial creativity behind the

decisions through this book.

2) Paras Divan; Environmental Law in India

The researcher was able to highlight the various aspects of

pollution and of degradation of environment through the

medium of this book. The author has very efficiently

described and distinguished the types of pollution and their

effects thereof.

Hypothesis:

Judicial Activism is the manner and the process through

which the judiciary examines the prospects of the problem

and lays down specific solutions in its way. It isn’t the

4

job of the judiciary to formulate specific doctrines and

principles which take the shape of law, but, it does fill in

the gaps which are left by the legislature. In the same

manner, are such principles and doctrines and the judicial

creativity enough to preserve and protect the environment,

is an important question, of which, the answer lies that

judiciary plays a crucial role in the environment protection

and has been able to guarantee the citizens the right of a

clean environment as matter of Fundamental Right under

Article 21.

Sources of Data:

This research being a Doctrinal Descriptive Research, there

have been two main sources of data; Primary and Secondary

Sources.

The Primary Data includes:

a. The Constitution of India

b. The Air (Prevention and Control of Pollution) Act, 1981

c. The Water (Prevention and Control of Pollution) Act,

1974

d. The Environment Protection Act, 1986

e. Wildlife Protection Act, 1972

f. Kyoto Summit on Global Warming, 1997

g. The Rio Conference

h. The Stockholm Conference

5

i. The Bruntland Commission Report

The Secondary Data includes:

Various Article and Journals which have been footnoted and

provided with respective references at appropriate places.

Chapterization:

Chapter One includes the Introduction and Research

Methodology to the research project

Chapter Two deals with the various types and kinds of

pollution of the environment and their effects respectively.

Chapter Three deals with Judicial Activism in Environment

litigation and throws light of the various principles and

doctrines of environmental importance which have been

formulated by the judiciary by means of environment

litigations.

Chapter Four discusses the various International Conventions

which were kept in mind while formulating the important

environmental legislations in India

Contribution of the Study:

6

The research project aims to contribute towards the

awareness and the sensitizing of the readers towards the

degradation of environment and also discuss about the role

of the judiciary in developing and conceptualizing the

various environmental principles which today form an

important aspect of environmental jurisprudence.

Limitations of the Study:

This study is limited to the scope in India and discusses

the Judicial Activism of the Indian Judiciary. Pollution and

environmental degradation as discussed refers only to the

situation in hand in India.

7

CHAPTER- 2

Degradation of Environment and Factors

Responsible Thereof

The term ‘environment’ includes air, water and land and the

interrelationship which exists among and between these three

basic elements and human beings and other living organisms.

In T.N Godavaraman Thrirumalpad v. Union of India1the Supreme Court

of India observed:

“Environment is a difficult word to define. Its normal meaning relates to the

surroundings, but obviously that is a concept which is relatable to whatever

object it is which is surrounded. Environment is a polycentric and multifaceted

problem affecting the human existence”

1 AIR 2003 SC 724

8

The definition of environment establishes the philosophical

basis of any legislation drafted and implemented to protect

environment. The aspects of the environment and the

perceptions which policy makers have of the environment,

particularly human’s place in it. Such a definition also

reflects the focus of the environment legislation and the

commitment of the State towards protecting the law.

The term Environment Degradation refers to the deterioration

in the physical components brought in by the anthropogenic

process to such an extent that it could not be set right by

homeostatic mechanism of environment. It simply means the

overall lowering of environmental qualities because of

adverse changes brought in by human activities in the basic

structure of the components of environment to such an extent

that these adverse changes adversely affect al biological

organisms in general and human societies in particular. The

major environmental concerns in India today are air

pollution resulting from industrial developments; water

pollution from industrial and domestic effluents; soil

erosion, deforestation, desertification and loss of land and

resources; ugly landscapes, urban sprawls and city slums

resulting from burgeoning population.Latest estimates show

that nearly 53% of India’s area (173.6 million hectares) has

been subjected to land degradation due to activities like

excessive grazing, road construction, mining and

unscientific agricultural practices such as shifting

9

cultivation. Deforestation and uncontrolled cultivation of

mountain slopes without appropriate slope treatment has

caused massive soil erosion. The forest cover in India is

disappearing at a staggering rate of 1.3 million hectares

each year. No more than about 12% of the country’s land

surface is actually under adequate tree cover as against the

target of 33% prescribed by National Forest Policy of 1952.

The major causes of deforestation in India are encroachment

of forest lands for cultivation, shifting cultivation,

diversion of forest land to non-forest uses, grazing,

unauthorized and commercial felling and industrial use.

Fresh water scarcity is another major environmental problem

in India. The pollution of water is increasing and more than

80% of the total pollution load comes from municipal sewage.

The extent of pollution from industries is also increasing.

Tanneries in Madras, Kanpur, Agra and Calcutta and dyeing

units in Gujarat, Madhya Pradesh and Madras create heavy

pollution loads without having effective treatment

facilities. India also uses about 5 million tons of chemical

fertilizers and 77,000 tons of pesticides and insecticides

which usually find their way into rivers or into underground

water.

Improper solid waste disposal is also a growing

environmental problem in India. Pollution caused by

hazardous chemical substances in the environment and the

10

consequent contamination of land, in India is apparently

increasing for several reasons. Indian industries generate,

use and discard toxic substances. While increasing number of

farmers encouraged by government use toxic chemicals in

their agricultural activities. The monitoring of chemical

concentrations in soil, water, food and body tissues is not

yet sufficiently coordinated and regulated to provide early

warning of hazardous levels. Also, improper disposal of bio-

medical waste in the major cities of India has been matter

of serious concern.

It now becomes expedient to define and structure down the

definition of Pollution and the varied effects of the

various types of Pollution.

1. AIR POLLUTION

Air pollution is defined as any contamination of the atmosphere

that disturbs the natural composition and chemistry of the air.

This can be in the form of particulate matter such as dust or

excessive gases like carbon dioxide or other vapors that cannot

be effectively removed through natural cycles, such as the carbon

cycle or the nitrogen cycle.

Air pollution comes from a wide variety of sources. Some of the

most excessive sources include:

11

Vehicle or manufacturing exhaust

Forest fires, volcanic eruptions, dry soil erosion, and

other natural sources

Building construction or demolition

Depending on the concentration of air pollutants, several effects

can be noticed. Smog increases, higher rain acidity, crop

depletion from inadequate oxygen, and higher rates of asthma.

Many scientists believe that global warming is also related to

increased air pollution.2

The Air (prevention and control of pollution) Act of 1981,

defines “air pollutant”3 as any solid, liquid or gaseous

substance [(including noise)] present in the atmosphere in such

concentration as may be or tend to be injurious to human beings

or other living creatures or plants or property or environment.

Forms of Air Pollution and Effects:4

There are two forms of air pollution considered to be most

harmful to humans by the American Lung Association. These are

ozone, or smog, and particle pollution, or soot. Most ozone is

formed by a chemical reaction between sunlight and the vapors

emitted by the burning of carbon based or fossil fuels. Ozone

pollution is generally highest during the sunniest months of the

year, from May through October. This pollutant can cause short

2 Ashok K. Jain; Law and Environment; Ascent Publications; 1st edn; Delhi3 Section 2(a)4 Introduction to Environmental Protection of India

12

term health issues immediately following exposure, such as

irritation to skin and the respiratory system, and long term

exposure can lead to more serious health problems, such as

impaired lung function, inflammation of the lung lining, and

higher rates of pulmonary disease.

Particle Pollution:

Particle pollution also takes a place at the top of the list of

most dangerous to human health, and is very widespread throughout

the environment. This type of air pollution consists of solid and

liquid particles made up of ash, metals, soot, diesel exhaust,

and chemicals. Particle pollution is produced by the burning of

coal in power plants and other industries, and by the use of

diesel fuel in passenger vehicles, cargo vehicles, and heavy

equipment. Wood burning is a source of particle pollution, as are

many of today's agricultural practices. Capable of triggering

strokes, heart attacks, and irregular heart rates, particle

pollution can be dangerous even in low concentrations. Lung

cancer and premature birth have also been linked to exposure to

particle pollution, and it is known to irritate respiratory

conditions, including asthma, and cause coughing, wheezing, and

even shorter life spans.

Other Common Air Pollutants:

Other common air pollutants that can pose health risks to humans

are carbon monoxide, nitrogen oxides, sulfur dioxide, and lead.

13

Carbon monoxide is produced by the incomplete burning of fossil

fuels in vehicles, home heating equipment, and industrial plants,

among many other sources, and is a colorless and odorless gas,

poisonous to humans and animals when inhaled. Nitrogen oxides are

gases that contribute to smog and acid rain. Sulfur dioxide is

produced by the burning of sulfur containing fuels like oil and

coal, and can cause health issues, especially in those with

existing heart or lung conditions. Lead is emitted into the air

by vehicles and industrial sites, as well as by waste burning

facilities. Lead is a neurotoxin when present in the body in high

concentrations, and can cause immune issues, reproductive

problems, kidney disease, and cardiovascular problems.

Greenhouse Gases:

Perhaps the most publicized form of air pollution these days is

the mixture of gases emitted into the air that are thought to be

responsible for producing the greenhouse effect, leading to

global warming and climate change. A certain percentage of

greenhouse gases are produced by natural sources and are

necessary to moderating the climate of the earth, making it

possible for its life forms to survive. However, beginning with

the Industrial Revolution, man has added to that production of

greenhouse gases, primarily by the burning of fossil fuels. Among

14

the most common of these are carbon dioxide, methane, and nitrous

oxide.

Greenhouse gases collect in the atmosphere, forming a layer of

reflective and absorbent materials that prevents some of the heat

radiated by the sun from escaping the Earth's atmosphere, keeping

the temperature sufficiently warm for plant and animal life to

thrive. However, with the addition of man made greenhouse gases,

too much heat can be reflected back into the atmosphere, giving

rise to the current fears about global warming. Estimates made by

the IPCC, or Intergovernmental Panel on Climate Change, predict

that greenhouse gas emissions will double within the next 50 to

100 years at current rates of growth, leading to a variety of

detrimental environmental effects. Among these are the melting of

polar ice, raising ocean levels and flooding coastal and other

low lying land areas. Increased storm activity and increased

force and severity of hurricanes, cyclones, and tropical storms

are among the possible consequences of climate change, as are

severely altered ecosystems and extinctions of plant and animal

species.

2. WATER POLLUTION

Water pollution involves any contaminated water, whether from

chemical, particulate, or bacterial matter that degrades the

15

water's quality and purity. Water pollution can occur in oceans,

rivers, lakes, and underground reservoirs, and as different water

sources flow together the pollution can spread.

According to the Water (prevention and control of pollution) Act,

1972 defines ‘Pollution5’ as

‘such contamination of water or such alteration of the physical,

chemical or biological properties of water or such discharge of

any sewage or trade effluent or of any other liquid, gaseous or

solid substance into water (whether directly or indirectly) as

may, or is likely to, create a nuisance or render such water

harmful or injurious to public health or safety, or to domestic,

commercial, industrial, agricultural or other legitimate uses, or

to the life and health of animals or plants or of aquatic

organisms;’

Causes of water pollution include:

Increased sediment from soil erosion

Improper waste disposal and littering

Leaching of soil pollution into water supplies

Organic material decay in water supplies

The effects of water pollution include decreasing the quantity of

drinkable water available, lowering water supplies for crop

irrigation, and impacting fish and wildlife populations that

require water of certain purity for survival.5 Section 2(e)

16

Forms of Water Pollution6:

There are various forms in which water gets polluted.

Surface Water Pollution:

Surface water pollution is the most visible form of pollution and

we can see it floating on our waters in lakes, streams, and

oceans. Trash from human consumption, such as water bottles,

plastics and other waste products, is most often evident on water

surfaces. This type of pollution also comes from oil spills and

gasoline waste, which float on the surface and affect the water

and its inhabitants.

Groundwater Pollution:

This type of pollution is becoming more and more relevant because

it affects our drinking water and the aquifers below the soil.

Groundwater pollution is usually caused by highly toxic chemicals

and pesticides from farming that leak through the ground to

contaminate the wells and aquifers below the surface.

Microbial Pollution:

Microbiological pollution is the natural form of water pollution

that is caused by microorganisms in uncured water. Most of these

organisms are harmless but some bacteria, viruses, and protozoa

can cause serious diseases such as cholera and typhoid. This is a

6 Supra; see 4

17

significant problem for people in third world countries who have

no clean drinking water and/or facilities to cure the water.

Biological Water Pollution:

Some viruses and bacteria are water born. These can cause serious

diseases in people in direct contact with this contaminated

water. This might include people drinking, swimming or washing in

the contaminated water and extremely serious and contagious

diseases such as cholera and typhoid are spread in this manner.

Oxygen Depletion:

Oxygen depletion destroys the natural balance of the water and

ultimately bacteria thrive and fish and other wildlife die.

Oxygen depletion is caused by the release of biodegradable matter

into the water, such as sewage and the natural process of

breaking this down uses the oxygen in the water. Once all the

oxygen has been depleted, bacteria are able to take over making

the water polluted.

Nutrients:

Nutrients such as phosphorus and nitrogen are essential to plant

growth. Fertilizers contain many nutrients and when these enter

the water supply, perhaps due to water running off a field into a

river, the nutrients cause an imbalance in the makeup of the

water. As nutrients are important to plant growth on land, the

same applies to plants in the water. Therefore, too many

nutrients in the water encourage the growth of weeds and algae.

18

This can make the water highly polluted and result in oxygen

depletion as mentioned above. The growth of algae is also known

as a bloom, and the bright green spread of an algae bloom in

fresh water is easily recognizable.

Chemical:

Chemical water pollution is perhaps the type of water pollution

that we are most familiar with. This term is used to describe the

act of adding unwanted chemicals to the water and is done through

the accidental spillage of substances into water; waste from

factories or industry and through pesticides running off fields

into water. Chemicals in water are poisonous and harmful to

wildlife as well as making the water too polluted to drink. The

effects of chemical pollution are wide reaching. Chemical water

pollution is also used to describe the pollution of water by oil,

for instance when an oil tank ruptures or a ship sinks. The

photographs and images we see on the television of oil covered

birds and dying wildlife gives some indication of the serious

nature of this and other types of pollution.

Suspended Matter:

Not all chemicals and pollutants are water soluble, and those

that aren't are called suspended matter. The tiny particles of

matter stay in the water and eventually fall to the bottom,

forming a layer of silt on the floor of the lake or river. This

is harmful to wildlife and causes long term problems due to an

imbalance in the natural infrastructure of the water. In addition

19

to the problems caused by the suspended matter, the problem

caused by pollution due to suspended matter is compounded by dead

fish and wildlife decomposing in the water.

3. Soil Pollution

Soil pollution is possibly most notable for the way that any

contaminants in the ground can find their way to our water

sources, thus bringing about greater levels of water pollution.

However, contamination of ground soils – from oil spills and

other hazardous waste dumps to heavy use of dangerous pesticides

– can permeate virtually every faction of environmental health.

By killing animals, crops, and trees (among other things), or by

rendering water sources unusable, soil pollution can silently be

one of the direst forms of environmental pollution in the world.

Soil pollution is also known as land pollution, and can also

arise from battery acid and other chemicals leaking from

computers, appliances, and other types of human waste that have

not been properly disposed of or recycled.

Forms of Soil Pollution7:

Industrial Activity:

Industrial activity has been the biggest contributor to the

problem in the last century, especially since the amount of

mining and manufacturing has increased. Most industries are 7 Supra; see 4

20

dependent on extracting minerals from the Earth. Whether it is

iron ore or coal, the by products are contaminated and they are

not disposed off in a manner that can be considered safe. As a

result, the industrial waste lingers in the soil surface for a

long time and makes it unsuitable for use.

Agricultural Activities:

  Chemical utilization has gone up tremendously since technology

provided us with modern pesticides and fertilizers. They are full

of chemicals that are not produced in nature and cannot be broken

down by it. As a result, they seep into the ground after they mix

with water and slowly reduce the fertility of the soil. Other

chemicals damage the composition of the soil and make it easier

to erode by water and air. Plants absorb many of these pesticides

and when they decompose, they cause soil pollution since they

become a part of the land.

Waste Disposal:

Finally, a growing cause for concern is how we dispose of our

waste. While industrial waste is sure to cause contamination,

there is another way in which we are adding to the pollution.

Every human produces a certain amount of personal waste products

by way or urine and feces. While much of it moves into the sewer

the system, there is also a large amount that is dumped directly

into landfills in the form of diapers. Even the sewer system ends

at the landfill, where the biological waste pollutes the soil and

21

water. This is because our bodies are full of toxins and

chemicals which are now seeping into the land and causing

pollution of soil.

Accidental Oil Spills:

Oil leaks can happen during storage and transport of chemicals.

This can be seen at most of the fuel stations. The chemicals

present in the fuel deteriorate the quality of soil and make them

unsuitable for cultivation. These chemicals can enter into the

groundwater through soil and make the water undrinkable.

Pollution is mainly of the above discussed kinds and has a multi-

faceted effect on the environment which gives rise to a variety

of litigations, mostly as those which infringe the people’s

rights to a clean and healthy environment. Mostly, litigations

related to environment come in the form of Public Interest

Litigations or Social Action Litigations, as writ petitions under

Article 226 of the Constitution of India or under Article 32.

Litigations of the like nature, are decided by the Supreme Court

of India and are interpreted in the widest sense as the judiciary

expands the scope of environmental jurisprudence and

conceptualizes various important and expedient doctrines and

principles which form a part of the environmental legislation of

India. The formulation of the ‘Polluter’s Pay Principle’,

‘Precautionary Principle’, ‘The Public Trust Doctrine’, the

22

concept of ‘Absolute Liability’ etc are a few concepts and

doctrines which found application and evolution in Indian

Judicial System only through the Judicial Activity and creativity

through environmental litigation.

CHAPTER- 3

Judicial Activism in Environmental Litigation

The role of judiciary depends on the very nature of

political system adopted by a particular country. This is

the reason that role of judiciary varies in liberal

democracy, communist system and countries having

dictatorship. The role of judiciary has been important in

liberal democracies like India. Constitution of India in

23

fact took inspiration from US Constitution and therefore

adopted similar concept of judicial review. In independent

India, history of judiciary, judicial review and judicial

activism has been a fertile area for legal researchers. It

is now a well established fact that, in India, in view of

legislative and executive indifferences or failures, the

role of judiciary has been crucial in shaping the

environmental laws and policies. The role of the Indian

Supreme Court may be explained quoting the views of

Professor S.P. Sathe and Professor Upendra Baxi two leading

academics who have extensively written on the role of

judiciary in India. Professor Sathe has analyzed the

transformation of the Indian Supreme Court "from a

positivist court into an activist court". Professor Upendra

Baxi, who has often supported the judicial activism in

India, has also said that the "Supreme Court of India" has

often become "Supreme Court for Indians".8 Many observers of

the Indian Supreme Court including Professor Sathe and Baxi

have rightly opined that the Indian Supreme Court is one of

the strongest courts of the world.9

Power and judicial activism of the Indian courts have

resulted into a strong and ever expanding regime of

8 Upendra Baxi, 'The Avatars of Indian Judicial Activitism : Explorations inthe Geography of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of theSupreme Court of India : It's Grasp and Reach (Delhi, Oxford University Press, 2000) pp.156-209 at 157.9 S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University Press, 2000).See, 'Preface' of this work written by Prof. Upendra Baxi, pp. ix-xxi.

24

fundamental rights. Stockholm Conference on Human

Environment, 1972, has generated a strong global

international awareness and in India it facilitated the

enactment of the 42nd Constitutional Amendment, 1976. This

amendment has introduced certain environmental duties both

on the part of the citizens [Article 51A (g)] and on the

state (Article 48-A).

Under the constitutional scheme the legal status of Article

51(A)-(g) and 48-A is enabling in nature and not legally

binding per se, however, such provisions have often been

interpreted by the Indian courts as legally binding.

Moreover, these provisions have been used by the courts to

justify and develop a legally binding fundamental right to

environment as part of right to life under Article 21.10

Hereinafter, an effort has been made to demonstrate that how

both the 'soft' and 'hard' international environmental laws

have been used by the Indian courts to develop a strong

environmental jurisprudence in domestic law. The Indian

judiciary adopted the technique of public interest

litigation for the cause of environmental protection in many

cases. The Supreme Court & High Courts shaded the

inhibitions against refusing strangers to present the

petitions on behalf of poor & ignorant individuals. The

10 R.L.E.K., Dehradun v. State of U.P. (Doon Valley Matter) was the first case in whichthe Supreme Court recognized a fundamental" right to live in a healthyenvironment with minimum disturbance of ecological balance". A.I.R. 1985 SC625 at 656.

25

basic ideology behind adopting PIL is that access to justice

ought not to be denied to the needy for the lack of

knowledge or finances. In PIL a public spirited individual

or organization can maintain petition on behalf of poor &

ignorant individuals.

The role played by the Judiciary in the formulation of

Environmental Jurisprudence in India can be studied through

the following landmark cases which gave a new face to

environment legislation and litigation both. It is only due

to the judicial creativity seen in these particular cases

that there are Doctrines and various aspects related to

protection and improvement of environment in India today.

I. Ratlam Municipality v. Vardhichand11

Till 1980, not much contribution was made by the courts in

preserving the environment. This was one of the earliest

cases relating to environment protection. Ratlam is a city

in the State of Madhya Pradesh in India. Some of the

residents of the municipality filed a complaint before the

Sub-Divisional Magistrate alleging that the municipality is

not constructing proper drains and there is stench and stink

caused by the excretion by nearby slum-dwellers and that

there was nuisance to the petitioners. The Sub-Divisional

Magistrate directed the municipality to prepare a plan with

six months to remove the nuisance. The order passed by the

SDM was approved by the High Court. The Municipality came in11 AIR 1980 SC 1622

26

appeal before the Supreme Court of India and contended that

it did not have sufficient funds to carry out the work

directed by the SDM. The Supreme Court of India gave

directions to the Municipality to comply with the directions

and said that paucity of funds shall not be a defense to

carry out the basic duties by the local authorities. The

Court held that the Respondents had standing in the matter.

At the heart of the matter was a public health issue and the

legal responsibility for it. Standing was thus based on the

interests of social justice in Indian society referenced

from the Constitution, particularly the Preamble and Article

38. The Court held that the Municipal Council was obliged to

take responsibility for the conditions of New Road, which

were found to be a public nuisance. The Municipal Council’s

legal obligations included providing adequate public

latrines, filling in the cesspools, stopping the flow of

effluent, and spraying potential malaria infestation. The

Court rejected the Municipal Council’s argument that

financial constraints prohibited it from obeying the

Magistrate’s order. The Court held that the Municipal

Council could not “run away from its principal duty by

pleading financial inability” and that “decency and dignity”

were “non-negotiable facets of human rights” which

constituted a “first charge on local self-governing bodies.”

The Court held that sanitised public places should not be at

the risk of a “self created bankruptcy” or a “perverted

27

expenditure budget.” The Court held that it had the

authority to require the Municipal Council to adopt a

specific scheme toward meeting its obligations under the

order.12

II. Rural Litigation and Entitlement Kendra v. State of

Uttar Pradesh13

Limestone mining operations in the Doon Valley became wide-

spread during the decade between 1955 and 1965 and many of

the leases were granted in 1962. After 1965, the negative

effects of mining began to be felt. Peace and calmness of

the valley was gone. Trees were felled at random and lush

green forests disappeared.4 The clearance of forests has

disastrous consequences. Forests are the means for

maintaining and preserving the ecology. Clearance of forests

has a negative impact on ecology. As a consequence of

cutting down of trees, certain wildlife species have become

extinct. A latest report in the Times of India shows that

there is a total decline of tigers in the hills of our

country. The deterioration of the resource base had damaged

food production. In most of the villages that lie below

quarries, the irrigation channels had been destroyed by the

flow of deposits and other debris from mines or from mining

roads. Village Bhitarli in the Tons catchment was self-

12 http://www.globalhealthrights.org/asia/municipal-council-ratlam-v-vardichan-and-ors/(accessed on 3.10.14)13 AIR 1985 SC 652, 656

28

sufficient in food grains and had surplus food and milk

production before the quarrying operations destroyed the

food and fodder base of the village. But the submersion of

the irrigation channels led to a drastic reduction in food

production and the loss of grazing land had decreased the

cattle population of eight households from 194 to 37. The

entire area below the limestone belt could no longer be used

for grazing and large areas had practically no vegetation as

they were covered by debris from the mines. The few pockets

of shrubs and forest that remains, were of no use for cattle

because of the continuous danger of rocks rolling down the

slopes as a result of blasting. An important economic

activity based on animal husbandry was, therefore, being

eroded and the decline in cattle population in areas

affected by mining was 40 per cent. The decline in livestock

population affected the production of milk, the production

of energy for farm operations and the production of animal

dung that provided soil fertility for sustainable

agriculture. The overall result was the collapse of the food

production system.

As a consequence of these problems, villagers living near

the quarries were becoming increasingly dependent on non-

agricultural incomes. The limestone quarries provided

employment to many of these villagers who had been rendered

unemployed. Quarrying affected agricultural activity not

only in the villages, in the surrounding area of the

29

quarries but also in the villages in the other parts of the

Valley served by the canal network. The destruction of the

hydrological stability of the region meant that there was

less water than was previously available for irrigation. The

lime rush which had been profitable for the quarry operators

could be the only factor behind the ecological and

economical collapse of the Valley.

On 11.8.1983 this Court appointed Bhargav Committee for

inspecting all the mines except those belonging to the State

of Uttar Pradesh and the Union of India for determining

whether the safety standards laid down in the Mines Act 1952

and the Mines Rules were being observed or not and whether

there was any danger of landslides or was any hazard to

individuals, cattle or agricultural lands by carrying on of

mining operations. Blasting operations in the area were also

directed to be stopped. On the basis of the main report of

the said Committee this Court on August 24, 1983 permitted

removal of limestone already quarried. The Committee

directed closure of some of the mines and reported the

defects appearing in other mines and called upon the mine

owners to carry out rectifications. . The Supreme Court in

this case moving under Article 32 ordered the closure of

some of this quarries on the ground that these were

upsetting the ecological balance though the judgment did not

make a reference to Article 21 but involving of jurisdiction

by the court under Article 32 presupposed the violation of

30

right to life guaranteed under Article 21. The decision of

the apex court in this case is undoubtedly a high water mark

in the judicial history of India. It calls for prevention of

ecological ruin by closure of quarries, protection and

improvement of environment through reclamation and

afforestation and of generation of employment for the good

and noble task of ecological balance.

III. M.C. Mehta v. Union of India (Delhi Stone Crushing

Case)14

In the case of M.C. Mehta v. UOI, a direction was sought

u/A. 32 of the Constitution of India to Haryana Pollution

Control Board for controlling the pollution caused by the

stone crushers, pulverizes and mine operators. The main

issue was that whether for the preservation of environment

and control of pollution, mining operations should be

stopped within the radius of 5 kms. from the tourist resorts

of Badkal Lake and Surajkund in the State of Haryana. SC

directed that there should be no mining activity within 2 km

radius of the tourist resorts. No construction activity

would be allowed within 5 km radius and even no renewal of

the leases would be made within these areas without

objection from the State Pollution Control Board. This was a

public interest petition in which certain directions of the 14 (1997) 11 SCC 327.

31

court were sought to be issued against the Union of India on

environmental pollution. The court observed that enactment

of laws regarding water and air pollution control was not

sufficient. No law can effectively work unless there is an

element of acceptance by the people in the society. In order

that human conduct may be un accordance with the prescribed

law, it is necessary that there should be appropriate

awareness of what the law requires and an element of

acceptance by the people that the requirement of law is

grounded in a philosophy which is to be followed. This is

possible only when steps are taken to make the people aware

of the indispensable necessity of their conduct being

oriented in accordance with the requirement of the law

IV. M.C Mehta v. Union of India15 (Ganga Pollution Case)

The petitioner prays for the issue of mandamus to the

respondents restraining them from letting out the trade

effluents into the river Ganga till they take necessary

steps for treating the trade effluents in order to arrest

the pollution of water in the said river. It is the

complaint of the petitioner that the large industries on the

bank of the river are disposing the trade effluents of the

factories and also the sewage of the towns and cities and

that neither the people nor the government are giving

15 AIR 1988 SC 11 15

32

adequate attention to stop the pollution of the river. On

receiving the petition the court directed the issue of

notice under O 1, r 8 of CPC asking the industries not to

allow the trade effluents and the sewage into the river

Ganga without appropriately treating them before discharging

them into the river. The court held that the tanneries at

Jajmau, Kanpur cannot be allowed to continue to carry out

the industrial activity unless they take step to establish

primary treatment plants. For every breach of a right there

should be a remedy. It further laid down that the tanneries

which have not set up primary treatment plants must stop

running their tanneries. The ban against letting out trade

effluents either directly or indirectly would continue till

a pre-treatment process was made by setting up primary

treatment plants as approved by the state pollution control

board. Those who had already put up such tanneries were

allowed to continue subject to the condition that they kept

the plants in sound working order.

Kanpur Tanneries Case16:

This was perhaps one of the earliest cases where the

activities of tanneries were brought to the attention of the

Supreme Court. This case was a public interest litigation

presented before a Division Bench of the Hon’ble Supreme

Court comprising of E.S. Venkataramiah and K.N. Singh, JJ.

16 AIR (1987) 4 SCC 463

33

The petitioner M.C. Mehta, who was an active social worker

had filed this petition inter alia for the issue of a

writ/order/direction in the nature of mandamus to the

respondents restraining them from letting out the trade

effluents into River Ganga until the time they put up

necessary treatment plants for treating the trade effluents

in order to arrest the pollution of water on the said river.

Respondent 1 was the Union of India, Respondent 7 — the

Chairman of the Central Board for Prevention and Control of

Pollution, Respondent 8 — the Chairman, Uttar Pradesh

Pollution Control Board and Respondent 9 — the Indian

Standards Institute. Respondents 14 to 87 and 89 were the

tanneries near Kanpur.

It was the complaint of the petitioner that neither the

Government nor the people were giving adequate attention to

stop the pollution of River Ganga. It was therefore sought

that steps should be taken for the purpose of protecting the

cleanliness of the stream in River Ganga. It was contended

that the trade effluent ---“Trade effluent” includes any

liquid, gaseous or solid substance, which is discharged from

any premises used for carrying on any trade or industry,

other than domestic sewage.--- discharged from tanneries was

ten times noxious when compared with the domestic sewage

water which flows into the river from any urban area on its

banks and was thus a major source of pollution of River

Ganga.

34

There was not much dispute on the question that the

discharge of the trade effluents from these tanneries into

River Ganga had been causing considerable damage to the life

of the people who used the water of River Ganga and also to

the aquatic life in the river. However, the tanneries of

Kanpur had presented that due to lack of physical

facilities, technical knowhow and funds, it had not been

possible for most of them to install adequate treatment

facilities. It was pleaded on behalf of a few tanneries that

if some time was given to them to establish the pre-

treatment plants they would install them. It was, however,

submitted by all of them that it would not be possible for

them to have the secondary system for treating waste water

as that would involve enormous expenditure which the

tanneries themselves would not be able to meet.

In his judgment Venkataramiah, J., held that the State was

under a constitutional duty to protect and improve the

environment --- “Environment” includes water, air and land

and the interrelationship, which exists among and between

water, air and land and human beings, other living

creatures, plants, micro-organisms and property. [Section

2(a) of the Environment (Protection) Act, 1986.] --- and to

safeguard the forests and wildlife of the country. ---

Article 48-A of the Constitution of India.---

35

In the opinion of the Court, it was a fundamental duty of

every citizen to protect and improve the natural environment

including forests, lakes, rivers and wildlife, and have

compassion for all living creatures. ---Article 51-A of the

Constitution of India. See also Declaration of the United

Nations Conference on the Human Environment, Stockholm,

1972. --- As a result, there was a statutory prohibition

against the use of any stream or well for the disposal of

polluting matter. ---Section 24 of the Water (Prevention and

Control of Pollution) Act, 1974. --- This meant that no

person could knowingly cause or permit any poisonous,

noxious or polluting matter to enter, directly or

indirectly, into any stream; or, knowingly cause or permit

to enter into any stream any other matter which may tend,

either directly or in combination with similar matters to

impose an obstruction on the proper flow of the water of the

stream.

V. Union Carbide Corporation v. Union of India17 (Bhopal

Gas Leak):

In this case, facts are as such that the early morning hours

of December 3, 1984, a poisonous grey cloud (forty tons of

17 AIR 1990 SC 273

36

toxic gases) from Union Carbide India Limited (UCIL’s)

pesticide plant at Bhopal spread throughout the city. Water

carrying catalytic material had entered Methyl Isocyanate

(MIC) storage tank No. 610. The killer gas spread through

the city, sending residents scurrying through the dark

streets. No alarm ever sounded a warning and no evacuation

plan was prepared. When victims arrived at hospitals

breathless and blind, doctors did not know how to treat

them, as UCIL had not provided emergency information. It was

only when the sun rose the next morning that the magnitude

of the devastation was clear. Dead bodies of humans and

animals blocked the streets, leaves turned black, the smell

of burning chilli peppers lingered in the air. Estimates

suggested that as many as 10,000 may have died immediately

and 30,000 to 50,000 were too ill to ever return to their

jobs.After 26 years, the court verdict for the Disaster

finally came. Some 25 years after the gas leak, 390 tons of

toxic chemicals abandoned at the UCIL plant continue to leak

and pollute the groundwater in the region and affect

thousands of Bhopal residents who depend on it. On June 7,

2010, seven ex-employees including the former chairman of

UCIL were convicted in Bhopal of causing death by negligence

and sentenced to two years imprisonment each. An eighth

former employee was also convicted but had died before

judgment was passed. The sentences will run concurrently.

The quantum of fine that chief judicial magistrate Mohan P

37

Tiwari of the trial court in Bhopal has imposed is paltry.

The court could have awarded exemplary fine on the accused

and the delinquent company. Behind it stood the government,

which had diluted the charges, so that convictions came only

under sections 304-A (causing death by negligence), 336, 337

and 338 (gross negligence), and 35 (common intention) of the

India Penal Code.Warren Anderson, who was then the CEO of

Union Carbide, was arrested, but was released on bail.

Likewise, the Government of India passed the Bhopal Gas Leak

Disaster Act that gave the government rights to represent

all victims in or outside India, and used this to strike a

bad deal with UCC, according to which it agreed to pay

US$470 million (the insurance sum, plus interest) in a full

and final settlement of its civil and criminal liability.

This meant a total of Rs. 12,000 approximately per person.

The US Court has ruled that there can be no extradition of

Anderson since according to US law, that his company was

guilty is immaterial. His personal criminality has to be

proved. Now owned by Dow Corporation, Union Carbide denies

responsibility for the tragedy. They are willing to take the

profits of Union Carbide India, but not take responsibility

for its crimes. And the judiciary has shown that while it is

willing to sentence to death an individual who kills for

profit or for terrorism, when it is a matter of big

corporate bodies it will soft pedal.

Absolute Liablity Principle in Indian Context:

38

The Supreme Court of India in MC Mehta v. Union of India

evolved a more stringent rule of strict liability than the

rule. In this case, which involved theleakage of and the

harm caused by Oleum gas from one of the units of Shriram

industriesin Delhi? The court held that keeping in mind the

needs and demands of a modern society with highly advanced

scientific knowledge and technology where for the sake

of development program, it was necessary to carry out

inherently dangerous or hazardous industry, a new rule had

to be laid down to adequately deal with the problems arising

in highly industrialized economy. This new rule had to be

based on the English rule of strict liability, but had to be

even more austere such that no firm carrying out an

inherently dangerous or hazardous activity might not escape

from liability, irrespective of the fact that whether there

was any negligence involved or not.

VI. Vellore Citizens Welfare Forum Vs Union of India18:

This is a landmark decision recognizing ‘Sustainable

Development’ as answer to balance development with ecology.

In this case, it was alleged that tanneries were discharging

their untreated effluents into the river Polar which was the

main source of water for the residents of the North Arcot

Ambedkar District area. The untreated effluents not only18 (1996) 5 SCC 647.

39

created a problem of drinking water but due to the highly

toxic nature of the effluents, it rendered the land unfit

for cultivation. The effluent from the tanneries changed the

physio-chemical properties of the soil and contaminated the

underground water by percolation and was held to be

environmental pollution as the drinking water of the wells

of the area also got polluted from it. Vellore Citizens

Forum brought an action to stop tanners operating within the

State of Tamil Nadu from discharging untreated effluent into

agricultural fields, waterways, open lands and waterways. It

is estimated that nearly 35,000 hectares of agricultural

land in the tanner’s belt had become polluted and unfit for

cultivation at the time of this action. The court directed

the Central Government to establish an authority to deal

with the situation created by the tanners. It directed the

authority to implement the precautionary principle, and

identify the (1) loss to the ecology/environment; and

individuals/families who have suffered because of the

pollution, and then determine the compensation to reverse

the environmental damage and compensate those who have

suffered from the pollution. The Collector/District

Magistrates shall collect and disburse the money. The Court

directed that where a polluter refuses to pay compensation,

his industry should be closed, and the revenue recovered as

areas of land revenue. Also even if an industry sets up the

necessary pollution control devices now it is still liable

40

to pay for the past pollution it has generated. The Supreme

Court went further to fine each of the industries the sum of

Rupees 10,000 each to be put into an Environment Protection

Fund and be used to restore the environment and to

compensate affected persons.

Precautionary Principle in Indian Context:

Precautionary Principle does not find any place in judicial

decisions in India before this case, where Supreme Court

referred the Brundtland Report and other international

documents in addition to Articles 21, 48A and 51A(g) of the

Constitution of India. And also taken into account the

legislative mandate “to protect and improve the environment”

as found in enactments like the Water (Prevention and Control of

Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981,

and the Environment (Protection) Act, 1986.

Drawing support from various Articles of the Constitution of

India and arguing that the Precautionary Principle is part

of customary international laws (and hence part of domestic

laws), the Court has strongly supported the application of

precautionary principle. In fact, the Court has also applied

the reversal of burden of proof and demanded that the

proponents of the activity must demonstrate that the

activity is environmentally benign. In this case the Court

41

explained the meaning of ‘Precautionary Principle’ in the

context of municipal law as under:

i. Environmental measures by the State Government and the

Statutory Authorities – must anticipate, prevent and

attack the causes of environmental degradation.

ii. Where there are threats of serious and irreversible

damage, lack of scientific certainty should not be used

as a reason for postponing measures to prevent

environmental degradation.

iii. The onus of proof is on the actor or the

developer/industrialist to show that his action is

environmentally benign.

Even though the Vellore judgment was followed in the

subsequent decisions of the Supreme Court, the Court felt

the need to explain the meaning of the ‘Precautionary

Principle’ in more detail and lucid manner so that Courts

& Tribunals or Environmental Authorities can properly

apply the said principle in the matters which might come

before them. In A P Pollution Control Board v. Prof. M. V.

Nayudu19the Supreme Court has reiterated its earlier stand

on the precautionary principle and demanded that the

burden of proof should rest with the person/entity

proposing the activities (which may have harmful effects

on the environment and/or human beings).19 [1999] 2 SCC 718

42

The precautionary principle has been viewed as an important

element of environmental policy since the Rio Declaration of

1992 and is widely believed to be favorable to the

conservation of existing natural environments and the

current stock of biodiversity including measures to avoid

deterioration in these. Previously Precautionary Principle

is being used only on the matter of the Environmental

pollution but today this is being used to deal with the wild

life protection, Biodiversity Conservation, matters related

to climate change, protection of shrimps etc.

VII. Indian Council for Enviro-Legal Action v. Union of

India20 (Polluter’s Pay Principle)

“The Polluter Pays” principle has been held to be a sound

principle by this Court in this case. The Court observed,

“We are of the opinion that any principle evolved in this

behalf should be simple, practical and suited to the

conditions obtaining in this country”. In this case the

number of private companies operated as chemical companies

were creating hazardous wastes in the soil, henceforth,

polluting the village area situated nearby, and they were

also running without licenses, so an environmental NGO,

filed writ petition under Article 32 of the Constitution of

India which sought from the court to compel SPCB and CPCB to

20 J.T. (1996) 2 196

43

recover costs of the remedial measures from the companies.

The Court ruled that "Once the activity carried on is

hazardous or inherently dangerous, the person carrying on

such activity is liable to make good the loss caused to any

other person by his activity irrespective of the fact

whether he took reasonable care while carrying on his

activity. The rule is premised upon the very nature of the

activity carried on". Consequently the polluting industries

are "absolutely liable to compensate for the harm caused by

them to villagers in the affected area, to the soil and to

the underground water and hence, they are bound to take all

necessary measures to remove sludge and other pollutants

lying in the affected areas". The ‘Polluter’s Pay Principle’

principle as interpreted by the Court means that the

absolute liability for harm to the environment extends not

only to compensate the victims of pollution but also the

cost of restoring the environmental degradation. Remediation

of the damaged environment is part of the process of

"Sustainable Development" and as such polluter is liable to

pay the cost to the individual sufferers as well as the cost

of reversing the damaged ecology.

VIII. M.C Mehta v. Union of India21: (Sriram Fertilizer Case)

21 AIR 1987 SC 965, 982, 1086

44

Shriram Food and Fertilizers Industry a subsidiary of Delhi

Cloth Mills Limited was producing caustic and chlorine. On

December 4th and 6th 1985, a major leakage of oleum gas took

place from one of the units of Shriram Food and Fertilizers

Limited in the heart of the capital city of Delhi which

resulted in the death of several persons that one advocate

practicing in the Tis Hazari Courts died.

The leakage was caused by a series of mechanical and human

errors. This leakage resulted from the bursting of the tank

containing oleum gas as a result of the collapse of the

structure on which it was mounted and it created a scare

amongst the people residing in that area. Hardly had the

people got out of the shock of this disaster when, within

two days, another leakage, though this time a minor one took

place as a result of escape of oleum gas from the joints of

a pipe. This writ petition under Article 32 of the

Constitution had come before the court on a reference made

by a Bench of three Judges. The reference was made because

certain questions of seminal importance and high

constitutional significance were raised in the course of

arguments when the writ petition was originally heard. The

facts giving rise to the writ petition and the subsequent

events have been set out in some detail in the Judgment

given by the Bench of three Judges P. N. Bhagwati, C.J.I.,

D. P. Madon And G. L. Oza, JJ. Bhagwati. J. thereafter

stated that,

45

“We in hold our hands back and I venture to evolve a new

principle of liability which English Courts have not done.

We have to develop our own law and if we find that it is

necessary to construct a new principle of liability to deal

with an unusual situation which has arisen and which is

likely to arise in future on account of hazardous or

inherently dangerous industries which are concomitant to an

industrial economy, there is no reason why we should

hesitate to evolve such principle of liability merely

because it has not been so done in England. We are of the

view that an enterprise which is engaged in a hazardous or

inherently dangerous industry which poses a potential threat

to the health and safety of the persons working in the

factory and residing in the surrounding areas owes an

absolute and non-delegable duty to the community to ensure

that no harm results to anyone on account of hazardous or

inherently dangerous nature of the activity which it has

undertaken. The enterprise must be held to be under an

obligation to provide that the hazardous or inherently

dangerous activity in which it is engaged must be conducted

with the highest standards of safety and if any harm results

on account of such activity, the enterprise must be

absolutely liable to compensate for such harm and it should

be no answer to the enterprise to say that it had taken all

reasonable care and that the harm occurred without any

negligence on its part. Since the persons harmed on account

46

of the hazardous or inherently dangerous activity carried on

by the enterprise would not be in a position to isolate the

process of operation from the hazardous preparation of

substance or any other related element that caused the harm

the enterprise must be held strictly liable for causing such

harm as a part of the social cost for carrying on the

hazardous or inherently dangerous activity. If the

enterprise is permitted to carry on an hazardous or

inherently dangerous activity for its profit, the law must

presume that such permission is conditional on the

enterprise absorbing the cost of any accident arising on

account of such hazardous or inherently dangerous activity

as an appropriate item of its overheads. Such hazardous or

inherently dangerous activity for private profit can be

tolerated only on condition that the enterprise engaged in

such hazardous or inherently dangerous activity indemnifies

all those who suffer on account of the carrying on of such

hazardous or inherently dangerous activity regardless of

whether it is carried on carefully or not. This principle is

also sustainable on the ground that the enterprise alone has

the resource to discover and guard against hazards or

dangers and to provide warning against potential hazards. We

would therefore hold that where an enterprise is engaged in

a hazardous or inherently dangerous activity and harm

results to anyone on account of an accident in the operation

of such hazardous or inherently dangerous activity resulting

47

for example, in escape of toxic gas the enterprise is

strictly and absolutely liable to compensate all those who

are affected by the accident and such liability is not

subject to any of the exceptions which operate vis-a-vis the

tortious principle of strict liability under the rule in

Rylands v. Fletcher.22

IX. M.C. Mehta v. Union of India & Others23: (Taj Mahal Case)

The Taj Mahal in Agra is one of the most beautiful monuments

on the earth. It was built by the Mughal ruler Shah Jahan in

memory of his deceased wife Mumtaz Mahal. It is built

entirely of white marble and was declared as a UNESCO World

Heritage Site in 1983. It attracts scores of tourists from

all over the world. But now the monument has developed a

yellowish tinge (and in some areas ugly brown and black

spots) owing to the increased levels of pollution around the

area. The main pollutant was sulphur dioxide released by the

industries which later on reacted with rain water to give

acid rain. Suspended Particulate Matter (SPM) was also one

of the culprits. Thus, M.C Mehta, an attorney in the Supreme

Court of India and an active environmentalist, filed a Writ

Petition in 1984 mentioning the adverse effects of the

industries and vehicles in the area on the Taj Mahal. He

22 [1868] UKHL 123 Writ petition (civil) no. 13381 of 1984

48

sought appropriate directions to be given to the concerned

authorities to take immediate steps to stop air pollution in

the area and save The Taj. This petition falls under Public

Interest Litigation (PIL). This case is commonly referred to

as ‘Taj Trapezium Case’. The ‘Taj Trapezium Zone’ (TTZ)

referred to by the court is a 10,400 sq.km trapezium-shaped

area covering the five districts of the Agra region. The TTZ

comprises over 40 protected monuments including three World

Heritage Sites — the Taj Mahal, Agra Fort and Fatehpur

Sikri. As a result of the petition, a series of orders were

given from 1993 by the court. On 8th of January, 1993, the

court directed the Uttar Pradesh Pollution Control Board to

make a detailed list of all the industries and foundries

active in the region and to make sure that pollution control

measures are employed by the industries and foundries. The

U.P Pollution Control Board filed an affidavit dated 3rd

May, 1993 reporting its survey. It categorized the various

industries and reported that there were total of 511

industries in the area. Notices were issued to all these

industries regarding pollution control as per the orders of

the court. The court gave its orders based on the

“Precautionary Principle” and “Polluter Pays Principle” as

was defined in Vellore Citizens Welfare Forum v. Union of India24. The

court was of the view that "the precautionary principle" and

"The polluter Pays" principle are essential features of

24 Supra; see 18

49

"Sustainable Development". The "Precautionary Principle" in

the context of the municipal law - means: (i) Environmental

measures – by the State Government and the statutory

authorities – must anticipate, prevent and attack the causes

of environmental degradation. (ii) Where there are threats

of serious and irreversible damage, lack of scientific

certainty should not be used as a reason for postponing

measures to prevent environmental degradation. (iii) The

"Onus of proof" is on the actor or the

developer/industrialist to show that his action is

environmentally benign. "The Polluter Pays" principle has

been held to be a sound principle by the court in Indian

Council for Enviro-Legal Action vs. Union of India25

X. M.C Mehta v. Kamal Nath26 (Public Trust Doctrine):

The doctrine is first mentioned in this case 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

25 Supra; see 2026 (1997) 1 SCC 388.

50

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 case 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 . 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

51

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.27

The above discussed cases, decided by the Supreme Court of

India are the landmark cases which have completely changed

the existence of environmental jurisprudence in India and

also developed the concept of Environmentalism. The

judiciary has showed tremendous creativity and has broadened

its approach in including Environment as a fundamental right

of every individual. The Environmental Legislations which

exist in India were formulated and brought into existence in

the pursuance of various International Covenants and

Treaties signed by the Union of India. The same have been

discussed in the next chapter.

27 www.legalservicesindia.com/articles

52

CHAPTER- 4

Legislations in Pursuance of International

Conventions

The diagnosis of environmental problems at the historic

first U.N. Conference on the Human Environment' unleashed a

spate of administrative and legislative measures in both

developed as well as developing countries . The smoldering

ecological crisis has provided an impetus to the

centralization of law -making process at international

level, as increasing number of international environmental

agreements have taken shape . The volume of

`soft law', through standard setting process by states has

also gone up manifold. The regulatory mechanism evolved by

the international community to address environmental

problems has heralded a sound body of international

environmental law. Several regional organizations, have also

set in motion environmental regulations and action plans.

However, the most noticeable trend is discernible at the

national level. The environmental renaissance which has

swept across, during the journey from Stockholm Conference

to Rio Earth Summit (1972- 1992), has brought about world-

wide phenomenal growth in environmental legislations. A

53

further spurt in this trend is also evident in the post -Rio

period. The importance of this development lies in the fact

that enforcement of regulatory measures has to take place at

the national level. The systematic growth of this body

of law could not but have been recognised as `environmental

law'.28

Article 253 of the Constitution of India directs the

Legislature to formulate laws upon the guidelines signed by

the Union of India in International Treaties, Conventions

and Agreements. Therefore, all the Conventions to which

India has been signatory, the legislature has formulated

Statutes on that basis and on those grounds.

Table:1

S.No.

InternationalEnvironmental Laws

Relevant IndianEnvironmental Statutes

1. The StockholmConference, 1972

The Air Act, 1981

2. The StockholmConference, 1972

The EnvironmentalProtection Act, 1986

28 Indian Bar Review Vol. Xxiii (3 & 4) 1996 Special Issue On Environmental Law; Op Sharma

54

3. The Rio Conference, 1992 The Public LiabilityInsurance Act, 1991

4. The Rio Conference, 1992 The National EnvironmentalTribunal Act, 1995

5. Convention of BiologicalDiversity, 1992.

The Biological DiversityAct, 2002

6. Convention ofInternational Trade inEndangered Species ofWild Fauna and Flora,1973.

The Wild Life Protection(Amendment) Act, 2002

Table 1 shows the main Environmental Laws in India and the

International Conventions which have been the reason behind

their formulation.

The Stockholm Conference, 1972:

One of the seminal issues that emerged from the conference

is the recognition for poverty alleviation for protecting

the environment. The Indian Prime Minister Indira Gandhi in

her seminal speech in the conference brought forward the

connection between ecological management and poverty

alleviation. Stockholm represented a first taking stock of

the global human impact on the environment, an attempt at

forging a basic common outlook on how to address the

challenge of preserving and enhancing the human environment.

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As a result, the Stockholm Declaration espouses mostly broad

environmental policy goals and objectives rather than

detailed normative positions. However, following Stockholm,

global awareness of environmental issues increased

dramatically, as did international environmental law-making

proper. At the same time, the focus of international

environmental activism progressively expanded beyond

transboundary and global commons issues to media-specific

and cross-sectoral regulation and the synthesizing of

economic and development considerations in environmental

decision-making.

In 1981 and 1986, the Air (Pollution and Prevention) Act and

the Environment Protection Act, respectively were enacted by

the Indian Legislature. These Acts aimed to be guided by the

principles of the Stockholm Conference and imbibed the basic

agenda behind that international convention. These two Acts,

are one of the most important legislations especially the

Environment Protect Act, 1986 which covers a blanket of all

issues relating to the environment and is a general statute

which talks about the protection of environment as a whole.

It is under this Act, that the Legislature and Executive

have powers to take whatever steps it deems necessary to

protect and improve the environment. The most important step

taken under this Act, under this provision is the

formulation of the EIA Notifications of 1994 and 2006.

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The Rio-Conference, 1992 (Earth Summit):

172 governments participated, with 116 sending their heads of

state or government.[1] Some 2,400 representatives of non-

governmental organizations (NGOs) attended, with 17,000 people at

the parallel NGO "Global Forum" (also called Forum Global), who

had Consultative Status. The issues addressed included:

systematic scrutiny of patterns of production — particularly

the production of toxic components, such as lead in

gasoline, or poisonous waste including radioactive chemicals

alternative sources of energy to replace the use of fossil

fuels which are linked to global climate change

new reliance on public transportation systems in order to

reduce vehicle emissions, congestion in cities and the

health problems caused by polluted air and smoke

the growing scarcity of water

An important achievement was an agreement on the Climate Change

Convention which in turn led to the Kyoto Protocol. Another

agreement was to "not carry out any activities on the lands of

indigenous peoples that would cause environmental degradation or

that would be culturally inappropriate".29 In decision making,

the ‘precautionary principle’ is considered when possibly

dangerous, irreversible, or catastrophic events are identified,

but scientific evaluation of the potential damage is not

29 Documents from the United Nations Conference on Environment and Development(also known as UNCED or the Earth Summit)

57

sufficiently certain The precautionary principle implies an

emphasis on the need to prevent such adverse effects. Uncertainty

is associated with each link of the causal chain of climate

change. For example, future GHG emissions are uncertain, as are

climate change damages. However, following the precautionary

principle, uncertainty is not a reason for inaction, and this is

acknowledged in Article 3.3 of the UNFCCC30.

India formulated a very important legislation in pursuance of the

Rio Conference. It being, The National Environment Tribunal Act, 1995.

During the Rio De Janeiro summit of United Nations Conference on

Environment and Development in June 1992, India vowed the

participating states to provide judicial and administrative

remedies for the victims of the pollutants and other

environmental damage. There lie many reasons behind the setting

up of this tribunal. After India's move with Carbon credits, such

tribunal may play a vital role in ensuring the control of

emissions and maintaining the desired levels. This is the first

body of its kind that is required by its parent statute to apply

the "polluter pays" principle and the principle of sustainable

development. The Public Liability Insurance Act, 1991 which was enacted,

was based on tortuous liability of the Polluter and incorporated

principles of Polluter’s Pay and Precautionary Principle. The

Parliament passed the Public Liability Insurance Act,

1991 to provide for public liability insurance for the

30 "What is the UNFCCC & the COP". Climate Leaders. Lead India. 2009 (accessed 4.10.14)

58

purpose of providing immediate relief to the persons affected by

accident occurring while handling any hazardous substance and for

matters connected therewith. The Act provides for

mandatory public liability insurance for installations

handling any hazardous substance to provide minimum

relief to the victims (other than workers) through the mechanism

of collector's decision. Such insurance will be based on the

principle of 'no fault’ liability as it is limited to only relief

on a limited scale. Such insurance apart from safeguarding the

interests of the victims of accidents would also provide cover

and enable the industry to discharge its liability to settle

large claims arising out of major accidents.

Convention of Biological Diversity, 1992:

The Convention on Biological Diversity (CBD), known informally as

the Biodiversity Convention, was a multilateral treaty. The

Convention had three main goals:

1. conservation of biological diversity (or biodiversity);

2. sustainable use of its components; and

3. fair and equitable sharing of benefits arising from genetic

resources

In other words, its objective is to develop national strategies

for the conservation and sustainable use of biological diversity.

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It is often seen as the key document regarding sustainable

development. The convention recognized for the first time in

international law that the conservation of biological diversity

is "a common concern of humankind" and is an integral part of the

development process. The agreement covers all ecosystems,

species, and genetic resources. It links traditional conservation

efforts to the economic goal of using biological resources

sustainably. It sets principles for the fair and equitable

sharing of the benefits arising from the use of genetic

resources, notably those destined for commercial use.

India enacted the Biological Diversity Act, 2002 in pursuance of the

Convention on Biological Diversity and the Act aims to:

Regulate activities prohibited under the Act

Advise the Government on conservation of biodiversity

Advise the Government on selection of biological heritage

sites

Take appropriate steps to oppose grant of intellectual

property rights in foreign countries, arising from the use

of biological resources or associated traditional

knowledge.

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MAJOR FINDINGS

The right of a person to pollution free environment is a

part of basic jurisprudence of the land. Article 21 of the

Constitution of India guarantees a fundamental right to life

and personal liberty. The Supreme Court has interpreted the

right to life and personal liberty to include the right

to wholesome environment. The Court through its various

judgements14 has held that the mandate of right to life

includes right to clean environment, drinking-water and

pollution-free atmosphere. The definition of ‘environment’

and, therefore, environmental law in India has always been

rather broad. Even today, not only does it include the

concept of sustainable development but also air and water

pollution, preservation of our forests and wildlife, noise

pollution and even the

protection of our ancient monuments, which are undergoing

severe stress due to urbanization and consequent

environmental pollution. Community resources such as tanks,

ponds, etc. have now been articulated by the Supreme Court

for inclusion in the concept of environment, and why should

it not be so, considering they all affect the quality and

enjoyment of our life. Awareness about the environment and,

particularly matters relating to pollution, have been

61

reborn, so to say, such that it is difficult to imagine that

our modern environmental jurisprudence is a little over

three decades old. This research purports to have found out

that in the Indian Scenario, the judiciary has been the only

organ of the government which has showed tremendous

potential in the development of environment principles. It

has safeguarded and evaluated many important principles such

as the Polluters Pay Principle, The Public Trust Doctrine

etc. all through the judicial response to Public Interest

Litigation.

CONCLUSION

The environment furnishes all essentials for life and so there

has been a close link between the environment and human beings.

Without a natural and congenial environment, human existence is

not possible on earth. Since time immemorial, the man had made

conscious and determined efforts to make use of the natural

resources and to modify his surroundings so that the adverse

impact caused by extremes of temperature rainfall and predators

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may be reduced. In the quest of making life more comfortable the

man has always exploited the nature. Agriculture,

industrialization and infrastructural developments are the causes

of exploitation of natural resources. Human activities create a

variety of wastes and bye-products which accumulate over a period

of time and may become toxic to the naturally growing plants,

animal and the mankind. Indiscriminate use of fertilizers and

pesticides has added to the problem. The rapid and unplanned

industrialization has given birth to factories emitting noxious

gas fumes and toxic effluents, making life more difficult on

earth. These things are constantly causing damage to environment.

It is also the duty of the state to protect the environment as

embodied under article 48-A, 39 (e) and 47 of the Indian

Constitution. So in order to deal with these ever-growing

problems, many acts have also been enacted by the parliament but

it is a court which always keeps a check on proper implementation

of these enactments and judiciary had played an important role in

interpreting the laws to protect the environment. The

environmental jurisprudence in India developed through the

instrument of Public Interest Litigation (PIL). Under the PIL,

the judiciary liberalized the concept of locus standi and thereby

empowered the people to approach the judiciary when the public

interest is harmed by either the action of the state,

organization or individual. Unique feature of the Indian

environmental jurisprudence is the important role played by the

PIL. The activism of the higher judiciary regarding the cases

63

related with violation of environment and human rights has

acquired the name of judicial activism. The Supreme Court has not

only played a leading role in the implementation of environmental

laws but also interpreted the right to life under Article 21 to

include a right to healthy and pollution free environment, as a

fundamental right.

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All India Reporter; Journal Articles Armin Rosencranz, Shyam Divan and Martha L.Noble,

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Ashok K. Jain; Law and Environment; Ascent Publications; 1st edn; Delhi

Climate Leaders. Lead India. 2009

Documents from the United Nations Conference on Environment and Development (also known as UNCED or the Earth Summit)

Dr. Bharat H. Desai;Enforcement of the Right to Environment Protection; Reprint from Indian Journal of International Law; Volume 33,1993

http://www.globalhealthrights.org Indian Bar Review Vol. Xxiii (3 & 4) 1996

Paras Divan; Environmental Laws in India; Allahabad Law Agency; 2010

S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India: It's Grasp and Reach (Delhi, Oxford University Press, 2000)

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S.P. Sathe, Judicial Activism in India (New Delhi, OxfordUniversity Press, 2000). See, 'Preface' of this work writtenby Prof. Upendra Baxi,

Upendra Baxi, 'The Avatars of Indian Judicial Activitism :Explorations in the Geography of (In) justice',

www.legalservicesindia.com/articles

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