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BASIC PRINCIPLES UNDER ENVIRONMENT ACT

CITIZENS SUIT PROVISION


Until the enactment of the Environment Protection Act, 1986 the right to pursue the case
was solely based in the hands of the Government. The Citizens suit provision under the
Environment Act expanded the locus standi in environmental prosecutions. Similar
provisions allowing citizens participation in the enforcement of pollution laws are found
in Sec. 43 of the Air Act (As amended in 1987) and Sec. 49 of the Water Act (As
amended in 1988).
Section 19 of the EPA provides that any person, in addition to authorized government
officials, may file a complaint with a court alleging an offence under the Act. However,
the person must give notice of 60 days of the alleged offence and the intent to file a
complaint. The citizens suit provision appears to give the public significant powers to
enforce the Environment Act. However, this requirement of 60 days is criticized on the
ground that it would give the polluter ample opportunity to clean up the mess and traces
of the offence. Also though the Act allows any information, reports, statistics, returns by
any industry to the government it does not require the same. Hence it is always said that
compulsory dissemination of information would make citizens suit provision an effective
tool to enforce environmental cases.
PRECAUTIONARY PRINCIPLE
A basic shift in the approach to environmental protection occurred initially between
1972 and 1982. Earlier, the concept was based on the assimilative capacity rule
(Principle 6 of Stockholm Declaration, 1972), which assumed that science could provide
policy makers with the information and means necessary to avoid encroachment upon the
capacity of environment to assimilate impacts and it 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.
Later the emphasis shifted to the precautionary principle (11
th
Principle of UN
Resolution on World Charter for Nature, 1982), and this was reiterated in the Rio
Conference of 1992 in its principle 15 (in order to protect the environment, the
precautionary approach shall be widely applied by states according to their capacities.
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). The inadequacy of science is the real basis that has led to the
precautionary principle of 1982 (As observed in the case of A.P. Pollution Control
Board v. Prof. M.V. Nayudu (1999) 2 SCC 718).
The precautionary principle is based on the theory that it is better to err in the side of
caution and prevent environmental harm which may indeed become irreversible. The
principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful activity.
Environmental protection should not only aim at protecting health, property and
economic interest but also protect the environment for its own sake (A.P. Pollution
Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718)
Essential ingredients of precautionary principle
Environmental measures by the state government and the statutory authorities
must anticipate, prevent and attach the causes of environment degradation.
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.
The onus of proof is on the actor or the developer/ industrialist to show that
his action is environmentally benign (reversal of burden of proof).
Precautionary duties must not only be triggered by the suspicion of concrete
danger but also by (justified) concern or risk potential.
The precautionary principle suggests that where there is an identifiable risk of serious or
irreversible harm, including for example, extinction of species, widespread toxic pollution
in major threats to essential ecological processes, it may be appropriate to place the
burden of proof on the person or entity proposing the activity that is potentially
harmful to the environment.
In other words the burden of proof is to be placed on those attempting to alter the
status quo. This is often termed as reversal of the burden of proof, because otherwise
in environmental cases, those opposing the change would be compelled to shoulder the
evidentiary burden, a procedure that is not fair. Therefore, it is necessary that a party
attempting to preserve the status quo by maintaining a less polluted state should not
carry the burden of proof and the party who wants to alter it, must bear this burden.
M.C. Mehta v. UOI (CNG Vehicle Case) AIR 2002 SC 1696
The Supreme Court observed that, it cannot be gainsaid that permission to use
automobiles has environmental implications, and thus any auto policy framed by the
Government must, therefore, of necessity confirm to the constitutional principles as well
as overriding statutory duties cast upon the Government under EPA. The auto policy
must adopt the precautionary principle and make informed recommendations which
balance the need of transportation with the need to protect the environment and reverse
the larger scale degradation that has resulted over the years, priority being given to the
environment over economic issues.
The court then observed,
The emission norms stipulated by the Government have failed to check air pollution, which
has grown to dangerous levels across the country. Therefore, to recommend that the role of
the Government be limited to specifying norms is a clear abdication if the constitutional
and statutory duty cast upon it to protect and preserve the environment, and is in the teeth
of the precautionary principle.
Though precautionary principle has emerged as basic guideline for the exercise of
governmental discretion, the problem is that there is not much consensus on the exact
scope of the principle. Every activity is fraught with certain risks and there can never be
full scientific certainty. Taken literally, the principle would be dont do anything.
In 2000, the European Commission dealt with the various aspects of
implementation the precautionary principle and state that it would be applicable
where preliminary objective scientific evaluation indicates that there are
reasonable grounds to believe that the potentially dangerous effects on the
environment and human, etc. may be inconsistent with the high level of
protection chosen for the community.
PUBLIC TRUST DOCTRINE

The ancient Roman Empire developed a legal theory known as the Doctrine of Public
Trust. The Doctrine primarily rests on the principle that certain resources like air, water,
sea and the forests have such a great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private ownership. The said resources being
a gift of nature, they should be made freely available to everyone irrespective of the status
in life. The Supreme Court in India has also recognized that this doctrine is part of Indian
Law. The Court in the below mentioned case held that the doctrine of public trust implies
following restrictions on government authority:

1. The property subject to the trust must not only be used for public purpose, but it
must be held available for use by the general public.
2. The property may not be sold even for a fair cash equivalent.
3. The property must be maintained for particular type of uses.


M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 (Span Motel Case)

In this case the Supreme Court for the first time applied this doctrine. It took notice of a
news item in the Indian Express newspaper dated 2
nd
Feb 1996. The respondents family
had direct links with Span Motel, which owned a resort, Span Resorts. The family floated
another venture, Span Club, encroaching upon a land, including forest land. It was
reported that the regularization of this encroachment was made when the first respondent
was the Minister for Environment and Forests in the Central Government. Span Reports
management used bulldozers and earth movers to control the course of river Beas,
and to keep the high intensity of flow away from the motel. It was feared that such
change would cost landslide and floods. Once the diversion of the river is complete, the
span management had plans to go in for landscaping.

While deciding the case the court went into the history of public trust doctrine as follows:

The ancient Roman Empire developed a legal theory known as the doctrine of public trust.
It was founded on the idea that certain common properties such as rivers,
seashores, forests and the air were held by government in trusteeship for the free
and unimpeded use of the general public. Our contemporary concern about the
environment bears a very close conceptual relationship to this legal doctrine. Under the
Roman law, these resources were either owned by no one (res nullius) of by
everyone in common (Res Communious). Under the English common law, however,
the sovereign could own these resources but the ownership was limited in nature,
the crown could not grant these properties to private owners if the effect was to
interfere with the public interest in navigation of fishing. Resources that were
suitable for these uses were deemed to be held in trust by the crown for the benefit of the
public. Joseph L sax, Professor of Law, University of Michigan proponent of the modern
Public Trust Doctrine in an erudite article, PUBLIC TRUST DOCTRINE IN NATURAL
RESOURCES LAW: EFFECT JUDICIAL INTERVENTION, MICHIGAN LAW REVIEW, VOL
68, PART 1, P 473, has given the historical background of the public trust doctrine as under :

The source of modern public trust law is found in a concept that received much attention in
Roman and English law the nature of property rights in rivers, sea and seashore. That
history has been given considerable attention in the legal literature need not be repeated in
detail here. But two points should be emphasized. First, certain interests, such as navigation
and fishing, were sought to be preserved for the benefit of the public; accordingly, property
used for those purposes were distinguished from general public property which the
sovereign could routinely grant to private owners. Second, while it was understood that in
certain common properties such as the seashore, highways, and running water perpetual
use was dedicated to the public, it was never been clear whether the public had an
enforceable right to prevent infringement of those interests. Although the state apparently
did protect public uses, no evidence is available that public rights could be legally asserted
against a recalcitrant government.

MI Builders Pvt Ltd. V Radhey Shyam Sahu AIR 1999 SC 2468

In this case the Lucknow Nagar Mahapalika permitted the appellant, MI Builders Pvt.
Ltd., to construct an underground shopping complex beneath Jhandewala Park.
The major part of the work was completed. The High Court quashed the relevant
resolution that permitted the construction. When it set aside the agreement, the high
court had noticed certain facts. The park was of historical importance, which Mahapalika
did not deny. Preservation or maintenance of the park was necessary from the
environmental perspective. The only reason advanced by Mahapalika for construction of
underground commercial complex was to ease the congestion in the area. The high court
said that construction of the underground shopping complex would only complicate the
situation, and the present scheme would further congest the area. The builders appealed.
The Supreme Court observed,

The park is of historical importance. Because of the construction of underground
shopping complex and parking it may still have the appearance of park with grass grown
and path laid but it has lost the ingredients if a park in as much as no plantation now can be
grown. Trees cannot be planted and rather while making underground construction many
trees have been cut. Now it is more like a terrace park. Qualitatively it may still be a park
but it is certainly a park of different nature. By construction of underground shopping
complex irreversible changes have been made.

The court went on to say that Mahapalika is the trustee for the proper management of the
park. When true nature of the park, as it existed, is destroyed, it would be violative of the
doctrine of public trust as expounded by this court in the case of Kamalnath.

Further the court observed that there is no principle agent relationship between the
builder and the government and it was on principal to principal level and the very fact
that the construction was done without sanction of the building plan the construction per
se is illegal.

The court observed that,

By allowing the construction Mahapalika had deprived its residents as also others of the
quality of life to which they were entitled to under the Constitution.. The agreement
smacks of arbitrariness, unfairness and favoritism. The agreement was opposed to public
policy.

Referring to literature the court quoted that the idea of public trusteeship rests upon
three related principles.

1. First, certain interests like air and sea have such importance to the citizenry
that it would be unwise to make them the subject of private ownership.
2. Secondly, they should be made freely available to the entire citizenry
without regard to economic status.
3. Thirdly, it is the principle purpose of government to promote the general
public rather than to re-distribute public goods from broad public use to
restrict private benefit.

MP Rambabu v. Divisional Forest Officer AIR 2002 AP 256

In this case state of AP High Court had to deal with the problem of salinity of
underground water. It was feared that digging bore wells and excessive usage of
agricultural lands for aquaculture caused salinity. The court said that deep underground
soil and water belong to the state in the sense that the doctrine of public trust extends to
them. Manifestly, their use is subject to the state regulation even in the absence of a
specific law. The underground water can be used only for a purpose for which the
superjacent land is held. If it is used for a different purpose and causes pollution of
underground water or soil, the state can interfere and prevent contamination. Applying,
the proposition to a person, who holds lands for agricultural purpose, the court held:

.under no circumstance, he can be permitted to restrict flow of water to the neighboring
lands or discharge the effluent in such a manner so as to affect the right of his neighbor to
use water for his own purposes. On the same analogy he does not have any right to
contaminate the water to cause damage to the holders of the neighboring agricultural
fields.

POLLUTER PAYS PRINCIPLE

It means that the polluter should bear the cost of pollution as the polluter is responsible
for pollution. This principle demands that the financial costs of preventing and
remedying damage caused by pollution should lie with the undertaking which cause the
pollution. Under it, it is not the role of government to meet the costs involved in either
prevention of such damage, or in carrying out remedial action, because the effect of this
would be to shift the financial burden of the pollution incident to the taxpayer.

Origin of the principle

The principle was promoted by the Organisation for Economic Co-operation and
Development (OECD) during 1970s when there were demands on government and
other institutions to introduce policies/ mechanisms to protect the environment
and the public from the difficulties inherent in defining the principle, the
European Committee accepted it as a fundamental part of its strategy on
environmental matters. Thus this principle has been incorporated into the
European Community Treaty. Article 102 R (2) of the Treaty states that
environmental considerations are to play a part in all the policies of the
Community, and that action is to be based on three principles
1. The need for preventive action
2. The need for environmental damage to be rectified
3. The polluter pays

Polluter pays principle and the Apex Court

It may be noted that the polluter pays principle evolved out of the rule of absolute
liability as laid down by the Apex Court in Shriram Gas Leak Case. In the Bichri case/ H
acid case [Indian Council for Enviro- Legal Action v. UOI AIR 1996 SC 1446] the Apex
Court nicely weighed and balanced the conspectus of absolute liability and polluter pays
principle. The court interpreted the principle to mean that the absolute liability
for harm to the environment extends to the cost of restoring the environmental
degradation in addition to compensating the victims for pollution. The Court
further observed,

That section 3 and 5 of the EPA empower the central government to give directions and take
measures for giving effect to this principle. The Power to lay down the procedures,
safeguards and remedial measures under the omnibus power of taking all measures
impliedly incorporated the polluter pays principle.

Calcutta Tanneries Case [M.C. Mehta v. UOI (1997) 2 SCC 411]
The task of assessment and recovery of restoration costs were assigned to an authority
appointed by the state government. The Apex Court also directed polluters to pay a
pollution fine with the proceeds being credited to an environment protection fund for the
restoration of the local environment.

M.C. Mehta v. Kamalnath (1997) 1 SCC 388
In this case Span Motel was also asked to pay compensation for the restitution of the
environment and ecology.

Deepak Nitrite Ltd. v. State of Gujarat, 2004
The issue in this case was when damages for, on account of polluter to pay can be
awarded in case of pollution caused by industries. The court held that compensation
to be awarded must have some broad correlation not only with the magnitude and
capacity of the enterprise but also with the harm caused by it.

Vijay Singh Puniya v. State of Rajasthan AIR 2004 Raj 1
In this case the High Court on the principle of Polluter pays directed that each of the
polluting industrial units shall pay to state industrial corporation, 15% of its turnover by
way of damages.

Vellore Citizens Welfare Forum v. UOI (AIR 1996 SC 2715)
In this case certain tanneries in the state of Tamil Nadu were discharged untreated
effluent into agricultural field, roadsides waterways and open lands. The untreated
effluent finally discharged in a river which was the main source of water supply to the
residents of Vellore. The Supreme Court issued comprehensive directions for maintaining
the standards stipulated by the Pollution Control Board.

The Supreme Court observed that,
The precautionary principle and the polluter pays principle are part of the environmental
law of the country. These principles are the essential features of sustainable development.
Further the court held that, the polluter pays principle means that the absolute liability for
harm to the environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation.

In this case the Apex Court directed the Central government to constitute an authority
under section 3 of the EPA and confer on the said authority all the powers necessary to
deal with the situation created by the tanneries and other polluting industries in the state
of Tamil Nadu.

INTERGENERATIONAL EQUITY

Intergenerational equity that is moral obligation of the current generation to use natural
resources in a manner without jeopardizing the aesthetic and economic welfare of the
future generation is advanced as an argument in favour of sustainable development and
natural resource use. If present generation continues consume and deplete resources at
unsustainable rate, future generations will suffer the environmental consequences.

Origin of the principle

The origin of the principle can be seen in the Principle 1 and 2 of the 1972 Stockholm
Declaration. These principles lay down the solemn responsibility on
the man to safeguard the natural resources of the earth for the benefit of the present and
future generations through careful planning and management. The report of WCED
(Brundtland), 1987, emphasizing the importance of sustainable development
talked not only of equity for the present but of intergenerational equity. And thus
the wheel of human reasoning came full circle 2000 years ago the Isopanishad had
stated:

all in this manifest world, consisting of moving or non moving, are governed by
the lord. Use its resources with restraint. Do not grab the property of others
distant and yet to come.

Dehradun Quarrying Case (AIR 1987 SC 359)

The Court observed,
We are not oblivious of the fact that natural resources have got to be trapped for
the purposes of the social development but one cannot forget at the same time that
tapping of resources have to be done with requisite attention and care so that
ecology and environment may not be affected in any serious way. It has always to be
remembered that these are permanent assets of mankind and not intended to be
exhausted in one generation.

Mathew Lukose v. Karnataka SPCB, 1990 (2) KLT 686
Explaining the principle of intergenerational equity the court held,
The world belongs to us in usufruct, but we own a duty to the posterity and to the
unborn to leave this world at least as beautiful as we found it.

State of Himanchal Pradesh v. Ganesh Wood Products AIR 1996 SC 149
It is contrary to public interest involved in preserving forest wealth, maintenance of
environment and ecology and consideration of sustainable growth and
intergenerational equity. After all, the present generation has no right to deplete all
the existing forests and leave nothing for the next and future generations.

Coastal Protection Case (1996) 5 SCC 281
The Supreme Court held,

Violation of anti pollution laws not only adversely affects the existing quality if life
but the non enforcement of legal provisions often results in ecological imbalance and
degradation of environment, the adverse effect of which will have to be borne by the
future generations.

Shrimp Culture Case [S. Jagannath v. UOI (1997) 2 SCC 87]
The Apex Court in this case held,

Sustainable development should be the guiding principle for Shrimp aquaculture
and by following the natural method, though the harvest is small but sustainable
over long periods and it has not adverse effect on the environment and ecology. It
held that there must be an environment impact assessment before permission
is granted to install commercial shrimp forms. The assessment must take into
consideration the intergenerational equity.

SUSTAINABLE DEVELOPMENT
Sustainable development means an integration of development and environmental
imperatives. It means development in harmony with environmental
considerations. To be sustainable, development must possess both economic and
ecological sustainability. It is a development process where exploitation of resources,
direction of investment, orientation of technology development and industrial changes
are all in harmony.

Sustainable development is multi dimensional concept with three interacting angels-
ecology, economics and ethics. The necessary conditions for achieving sustainable
development are ecological security, economic efficiency and social equity. Sustainable
development does not end with the sustainability of just the environment and resource
system but requires the sustainability also of economic and social system.

Ecological restoration, economic betterment and social justice mutually reinforce one
another (coordination between them is only apparent and not real) and call for same set
of policies and actions. In fact, environment protection is development, because
environment deterioration leads to poverty and distorted development.

Eco-development is a related concept. It is a process of ecologically sound
development, of positive management of environment for human benefit. For
example, banning tree felling in rural poor and tribals; development of
community or common lands for rural subsistence needs; and, developing
privately owned cultivated lands for Biomass needs of industries; towns and
villages. These are the components of the new development strategy. The
components of the eco-development also includes alternative development strategies:
Biogas, substitutes for natural resources, social forestry, micro-irrigation (an alternative
to big dams) and recycling of waters to prevent pollution.

The Report of WCED (Brundtland Report), 1987, produced a document Caring for the
Earth: A Strategy for Sustainable Living. The document defined and explained the
concept of sustainable development. Sustainable development is development that
meets the needs of the present without compromising the ability of the future
generations to meet their own needs.

The higher judiciary in India has recognized the principle of sustainable development as a
basis for balancing ecological imperatives with developmental goals. The Dehradun
Quarrying Case (AIR 1987 SC 359) was the first case of its kind in the country involving
issues relating to environment and ecological balance which brought into sharp focus the
conflict between development and conservation. The Supreme Court emphasized the
need for reconciling the two in the larger interest of the country.

Kinkri Devi v. State of Himachal Pradesh (AIR 1988 H.P. 4)
In this case the Court relied on the above-mentioned case and observed
If industrial growth sought to be achieved by reckless mining resulting in loss of life,
loss of property, loss of amenities like water supply and creation of imbalance, there
may ultimately be no real economic growth and no real prosperity.

People United for Better Living in Calcutta v. State of W.B. AIR 1993 Cal 215
observed,
While it is true that in a developing country there shall have to be developments, but that
development shall have to be in closest possible harmony with the environment, as
otherwise there would be development but no environment, which would result in total
devastation..There has to be a proper balance between the development and environment
so that both can co-exist without affecting and other.

The Court further observed
It is now a well-settled principle of law that socio-economic conditions of the
country cannot be ignored by court of law because the benefit of the society ought to
be the prime consideration of law courts. Thus, the courts must take cognizance of
the environmental problems. However, law courts ought not to put an embargo to
any development project which may be in the offing. The Courts are required to
strike a balance between the development and ecology and there should be no
compromise with each other.

Vellore Citizens Case is a landmark judgment where the principle of sustainable
development has been adopted by the Supreme Court as a balancing concept. While
rejecting the old notion that development and environmental protection cannot go
together, the Apex Court held the view that sustainable development has now come to be
accepted as a viable concept to eradicate poverty and improve the quality of human life
while living within the carrying capacity of the supporting ecosystem. Thus, pollution
created as a consequence of development must be commensurate with the carrying of our
ecosystem. The court observed,

Though the leather industry is of vital importance to the country as it generates
foreign exchange and provide employment avenues, it has no right to destroy the
ecology, degrade the environment and pose a health hazard.

M.C. Mehta v. UOI [Aravalli Hills Range Case] AIR 2004 SCW 4033
The Apex Court in this case observed,

The development and the protection of environment are not enemies. If without degrading
the environment or minimizing adverse effects thereupon by applying stringent safeguards,
it is possible to carry on development, in that eventuality, the development has to go on
because one cannot lose sight of the need for development of industries, projects etc.
including the need to improve employment opportunity and the generation of revenue. A
balance has to be struck.

In such matters, many a times, the option to be adopted is not very easy or in a strait-
jacket. If an activity is allowed to go ahead, there may be irreparable damage to economic
interest. In case of doubt, however, protection of environment would have precedence over
the economic interest.

In the instant case, a notification has been issued under rule 5, Environment
Rules, 1986, which prohibited undertaking expansion/ modernization of any
mining activity/ new project without clearance from the Central Government.
However, the MoEF later issued a circular giving time to defaulting units to obtain
ex post facto environmental clearances. The Supreme Court held that this shows
total non-sensitivity of MoEF to principles of sustainable development and the
object behind issue of notification. A statutory notification cannot be nullified by
issue of circular.

Goa Foundation v. Diksha Holdings (P)(Ltd.) AIR 2001 SC 184
In this case a PIL was filed against construction of hotel and sea beach resort in Goa
Coastal area on the ground that it would cause environmental damage. Held that the
permission granted to the proposed hotel project was based on consideration of relevant
material and the grant of permission was not in violation of any statutory provisions.

Further no evidence of ecological degradation on construction of the proposed hotel
complex was available. Hence, the court would not be justified in thwarting the hotel
project in the contextual facts. The central government has taken due care in obtaining
reports from the authorities of the Goa Government as well as deputed its own scientists
to have a spot inspection and report about the feasibility of the hotel project being
cleared up. The court observed,

while maintaining and preserving environment and ecology, economic development of the
state has to be kept in mind and a balance has to be struck between the two.