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A Project Submitted

on

Criminal Justice and Environmental Degradation A Case Study of


Municipality Council of Ratlam v. Vardichand

IN COMPLIANCE TO THE PARTAIL FULFILLMENT OF THE MARKING


SCHEME,FOR TRIMESTER 8 OF 2016-17, IN THE SUBJECT OF
ENVIRONMENTAL LAW

SUBMITTED TO :- SUBMITTED BY:-


PROFESSOR NADISHA VAZIRANI Parth Bhuta
65
BA LLB (Hons.)

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Acknowledgement

I would like to thank the Narsee Monjee Institute of Management Studies School of Law
for the opportunity to work on a project such as this one, which has been a great learning
experience.

I would also like to thank Professor Nadisha Vazirani for having provided us with this
opportunity to conduct a study and work on a project that helps us learn the subject of
Environmental Law in a new dimension, apart from providing the students her guidance and
contributions, whenever required.

The guidance and inputs are truly appreciated and valued.

Further I would like to thank all the valued contributors who have conducted studies
themselves and have written books and article that have been referred to in order to work on
this project.

All contributors are thanked for their works and contribution to the field of study.

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Index

CHAPTER Page no.

RESEARCH METHODOLOGY 5

INTRODUCTION 7

CASE ANALYSIS 10

LEGAL ANALYSIS 13

ROLE OF JUDICIARY 27

COMPARATIVE STUDY 29

CONCLUSION 32

SUGGETIONS 34

BIBLIOGRAPHY 36

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Table of Cases / Statutes

Table of cases
1. Municipality of Ratlam V. Vardichand

2. Taj Trapezium case ( M.C. Mehta)

3. Unni Krishnan v. St. of U.P.

4. Rural Litigation and Entitlement Kendra v. St. U.P.

5. Kinkri Dev v. St. Himachal Pradesh

6. Himmat Singh V. Bhagwana Ram

7. Nagarjuna Paper Mills Ltd. V. SDM & RDO

8. Ajeet Mehta v. St. of Rajasthan

9. Law Society of India v. Fertilizersand Chemichals, Travancore

Table of Statutes
Constitution of India

Indian Penal Code

Criminal Procedure

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Research Methodology

Method Adopted:

In my research, I have adopted the secondary research wherein the researcher have read and
researched through the statistics provided by the others. This is because my topic
Criminal Justice and Environmental Degradation A Case Study of Municipality Council of
Ratlam v. Vardhichand in context of Indian Law is a very wide concept in our country. The
Statues are the primary source of all the laws in the country. Except for a select few cases in
India, there are many case laws regarding this topic in our country for which the researcher
have referred through magazines and journals in the legal field.

My topic is relevant from the point of view of the subject Environmental Law. As an
aspiring lawyer, one must be well versed with the knowledge of current affairs and the law of
the country. Also, a lawyers skill lies in the understanding of facts, their presentation and
forming an opinion of the same.

As the topic demands, I have added some very popular case because they have had the great
impact on the law making procedure of the country and its people. The purpose of this is to
create awareness and understand the past, present and future of this topic. In the recent times
this policies and regulations has come into the fore with the Supreme Court and the high
courts verdicts on certain important issues.

Objective:

Objective of making this report is to have a view about the various laws in enacted in the
Indian context as well as in the other countries regarding Environmental Law.

Research Questions:

1. How did the Ratlam case helped in the evolution of the environmental jurisprudence
in India?
2. How has the Ratlam case influenced the nexus between the criminal law and
environmental degradation in India?

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Limitation of the Study:

However, there could have been a wider perspective in my research. There could have been
more cases provided in my research if there would not have been a page constraint and a
more scope to my research.
In spite of the limitations I have tried to cover all the aspects and explained the concepts as
extensively as possible.

For this project titled Criminal and Environmental Degradation A case study of
Municipality of Ratlam v. Vardhichand the doctrinal method was judged to be most
appropriate. Primary resources referred to in the course of research include books, journals,
law reports and cases, most of them accessed from the NMIMS law library. Other sources
like articles, and the like were accessed online through the use of online databases. All direct
quotations have been properly footnoted.

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Chapter 1

Introduction

"The Sky is like Father


The Earth is like Mother and
The Space as Their Son
The Universe consisting the Three
is like a Family and
Any kind of damage done to any one of the Three
Throws the Universe out of Balance"1

Relevance of the Topic:

In order to understand the relevance of Environmental law, we need to understand the extent
to which vested interests behind development apply. Development more often then not at a
huge cost to various eco systems that provide the material, energy and man-power for said
development. Now, while it is pertinent to note that development in a developing countries
like India, which are welfare states, does come at the forefront, we have to understand that
the inherent capitalistic nature of the developmental framework of India is causing a lot of
problems in the implementation of these welfare goals. Everybody is out ot make a profit by
any means necessary.

Herein starts the entire saga of cost cutting, corruption and unsustainable use of resources. In
order to maximise use of profits many subtle aspects that affects or are affected by
development tend to rather get ignored or over-exploited. Environment and its use is one of
the subtlest aspect involved in development because while we modify the environmental
factors in the course of development, the actual effects of said development on the
environment are seen either in very subtle ways or after a long period of time.

Hence environment is being degraded in the name of development which is a cause of


concern.

1
Rigveda, 160.2; 6.51.5

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We have to understand that environment and our Constitution and the fundamental right
guaranteed too us under our constitution are inherently intertwined.

Article 48A of the Constitution of India mandates that the states shall endeavour to protect
and improve the environment and safeguard the forests and wildlife of the country.

Article 51 A (g) of the Constitution states that it shall be the duty of every citizen to protect
and improve the natural environment including forests and wildlife.

Article 21 of the constitution states that Protection Of Life And Personal Liberty: No person
shall be deprived of his life or personal liberty except according to procedure established by
law.2

The meaning of the word life includes the right to live in fair and reasonable conditions, right
to rehabilitation after release, right to live hood by legal means and decent environment. The
expanded scope of Article 21 has been explained by the Apex Court in the case of Unni
Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights
covered under Article 21. It was observed in Unni Krishnans case that Article 21 is the
heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the
life includes the education as well as, as the right to education flows from the right to life.

2
http://www.legalserviceindia.com/articles/art222.htm

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Inter Disciplinary Approach
3
Figure. Potential areas of cultural heritage impact on socio-economic development

Socio Economic Impact

Various Studies which have been conducted over the time period of the past two decades, have
identified and underlined Two major measurable of the economic impacts of heritage
conservation:

1) jobs and household income;

2) heritage tourism;

1) Jobs and household income

For most professionals in the economic development field, the top priorities are creating
jobs and increasing local household income. The rehabilitation of historic buildings is
particularly potent in this regard. The costs of new construction in India will be half

3
https://www.academia.edu/2624677/Cultural_economic_and_social_sustainability_of_heritage_tourism_issues
_and_challenges

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materials and half labor. The costs of rehabilitation will be 60 to 70% labor with the balance
being materials. This labor intensity affects a local economy on two levels.

First, the plumbing fixtures are bought from a plant a thousand miles away, and the lumber
may be imported from across the ocean, but the services of the plumber and the carpenter are
purchased from across the street. Furthermore, once the plumbing is installed, the plumbing
doesnt spend any more money.

Ultimately, economic development is about jobs, and heritage conservation not only
provides jobs, it provides good jobs and more of them.

2) heritage tourism

The next category is heritage tourism. This is a challenging area. While tourism is one of the
fastest growing segments of the worlds economy, not every city can or should look to
tourism as a major portion of its economic base. There are cultural, economic, logistical, and
sometimes even religious reasons for why tourism is not appropriate for every community.
Furthermore, it would be a mistake to only connect historic buildings with tourismthere are
many more ways that historic buildings can be used as a local resource. However, when
tourism is identified as part of an overall development strategy, the identification, protection,
and enhancement of historic resources is vital for any sustainable effort.

A study was conducted on the spending patterns of heritage visitors with tourists who did no
heritage activities. They found that heritage visitors stay longer, visit twice as many places,
and so, on a per trip basis, spend 2.5 times more than other visitors. Worldwide, wherever
heritage tourism has been evaluated, this same basic tendency is observed: heritage visitors
stay longer, spend more per day, and, therefore, have a significantly greater per trip economic
impact.

Socio Political / Legal Aspects:

The politics of the country are dominated by money minded individuals who only look for
economic gain. There might be some sort of social propaganda and vote bank politics that
may somewhere lead to some sparing benefits accruing to the indigenous people, but majorly,
it can be seen that the politics of a modern state revolve around economic progress and
growth, with no care for the environment.

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Thus it can be seen that heritage tourism boosts the foreign revenue of the country which in
turn facilitates economic development of the country.

Brief Outline of Scheme of Chapters:

Chapter 1:

Introduction:

Brief introduction with the relevance and significance of the topic

Chapter 2:

Case Analysis:

This chapter will comprise of the Facts, Contention and Ratio and Judgement
of the case.

Chapter 3:

Statutory Analysis:

This chapter will comprise of the various provisions such as


constitution of India, Criminal Procedure, IPC, etc.

Chapter 3:

Role of Judiciary:
This chapter will comprise of other various other judgements given by the
various courts of the Judiciary.

Chapter 4:
Comparative Study:
This chapter will comprise a comparative study between Pre and Post
Colonial Laws.

Chapter 5:
Conclusion and Suggestions:

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This chapter will compromise of the findings of the researcher
and identifying the gaps of the law and subsequently the opinion of the researcher in which
way this will be more useful.

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Chapter 2

Case Analysis: Municipality of Ratlam v. Vardhichand

Facts of the Case:

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 in 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.4 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 defence to carry out the basic duties by the local authorities.

Contentions of the case:

Respondents alleged that the Municipality had failed to meet its obligations to provide for
public health including by failing to abate pollution and other hazardous waste from
impacting their homes.5 Specifically, the Respondents sought a halt to pollution runoff from a
nearby alcohol plant, mitigation of open waste that collected in open cess pools and poorly
drained areas, mitigation of malaria resulting from standing water, and the creation of
sanitary facilities to prevent the flow of human waste into their neighbourhood.

4
http://envionmentclimatechanges.blogspot.in/2012/06/municipal-council-ratlam-vs-vardhichand.html
5
http://dramarnathgiri.blogspot.in/2012/08/green-decisions-summary-of-some.html

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Ratio of the Case:

In upholding the lower courts decision in favour of the residents, the Supreme Court
considered the case in the context of collective rights and the public interest. It also took into
consideration substantive equality between wealthier and poorer residents of the municipality
and the obligation of municipal authorities to abate public nuisances. In its reasoning the
Supreme Court explained the situation: The rich have bungalows and toilets, the poor live on
pavements and litter the street with human excreta because they use roadsides as latrines in
the absence of public facilities. And the city fathers being too busy with other issues to bother
about the human condition, cesspools and stinks dirtied the place beyond endurance which
made well-to-do citizens protest, but the crying demand for basic sanitation and public drains
fell on deaf ears. The Court expressed its appreciation for the Magistrates decision to order
the Municipality to undertake action. The Court held that the power of the Magistrate under
the Code of Criminal Procedure s. 133, forms a public duty to the members of the public
who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are
present as here. The Municipality could therefore not extricate itself from its responsibility.
The Court furthermore held that the Municipalitys alleged financial inability does not take
away its liability. The Criminal Procedure Code operates against statutory bodies and others
regardless of the cash in their coffers, even as human rights under Part III of the Constitution
have to be respected by the State regardless of their budgetary provision. The Court
furthermore held that a responsible Municipal Council constituted for the precise purpose of
preserving public health and providing better finances cannot run away from its principal
duty by pleading financial inability.6 Decency and dignity are non-negotiable facets of human
rights and are a first charge on local self-governing bodies. Therefore, providing drainage
systems not pompous and attractive, but in working condition and sufficient to meet the
needs of the people cannot be evaded if the Municipality is to justify its existence.

Judgement of the case:7

The Supreme Court upheld the High Courts view affirming the Magistrates order. The
Supreme Court ordered the Municipal Council to immediately abide by its obligation to
protect by halting pollution from the alcohol plant flowing into the community. It also

6
http://www.waterlex.org/waterlex-legal-database/index.php?r=legalDocument/customView&id=244
7
https://indiankanoon.org/doc/440471/

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ordered the Council to immediately begin to take steps to meet its obligation to fulfil by
providing a sufficient number of public latrines for use by men and women separately, to
provide water supply and scavenging service morning and evening to ensure sanitation, and
required the Municipal authorities to meet this obligation within six months of the Courts
order. The Court added that if its order was not implemented municipal authorities could face
criminal sanctions as well as hold them in contempt of court. The Court also ordered the State
Government to give special instructions to the responsible body for malaria eradication to
stop the mosquito breeding in this area within a reasonable time. Further; The Municipality
will not merely construct the drains but also fill up cesspools and other pits of filth and use its
sanitary staff to keep the place free from accumulations of filth. The Court also held that the
Municipality if resources were limited, it needed to prioritize mitigation of such public health
nuisances over low priority items and elitist projects, request loans and grants from State
Government, and use the savings in the area of public health expenditures that will be
realized by implementing the Courts order.

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Chapter 3

Legal Analysis

Article 21 of the constitution states that Protection of Life and Personal Liberty: No person
shall be deprived of his life or personal liberty except according to procedure established by
law.8

The meaning of the word life includes the right to live in fair and reasonable conditions, right
to rehabilitation after release, right to live hood by legal means and decent environment. The
expanded scope of Article 21 has been explained by the Apex Court in the case of Unni
Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights
covered under Article 21 on the basis of earlier pronouncements and some of them are listed
below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance

It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and
it has extended the Scope of Article 21 by observing that the life includes the education as
well as, as the right to education flows from the right to life.

A common nuisance is not excused on the ground that it causes some convenience or
advantage.

8
http://www.legalserviceindia.com/articles/art222.htm

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Duty of the State (Part IV):

Part IV of the Constitution of India contains the directive principles of State policy. These
directives are the active obligations of the State; they are policy prescriptions for the guidance
of the Government. Article 37 of Part IV of the Constitution limits the application of the
directive principles by declaring that these principles shall not be enforceable by any Court.
Therefore, if a directive is not followed by the State, its implementation cannot be secured
through judicial proceedings. On the other hand, these principles are fundamental in the
governance of the country and it is the duty of the state to apply these principles during the
process of law-making.

Part IV - Directive Principles of State Policy

Article 48A. Protection and improvement of environment and safeguarding of forests


and wild life The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country.

The parliament had considerable debate over the wording of the draft Article 48- A. Several
amendments were moved in both the houses of the Parliament. H.M. Seervai has correctly
pointed out:

Article 48-A reflects an increasing awareness of people all over the word of the need
to preserve the environment from pollution, especially in urban areas. Smoke,
industrial waste, deleterious exhaust fumes from motor cars and other combustion
engines are injurious to the health and well-being of the people and foul the
atmosphere. The preservation of forests and their renewal by afforestation has long
been recognised in India as of great importance both with reference to rainfall and to
prevent erosion of the soil by depriving it of forests which protect it. The preservation
of wild life is looked upon as necessary for the preservation of ecological balance.
Article 48-A rightly emphasis the fact that the State should try not only to protect but
to improve the environment.9

Article 39(e), 47 and 48-A of the Directive Principles of State Policy have a definite bearing
of environmental problems. They, by themselves and collectively impose a duty on the State

9
H.M. Seervai, Constitutional Law of India: A Critical Commentary, 2019 (Vol.2, 1993).

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to secure the health of the people, improve public health and protect and improve the
environment.

Environmental pollution may damage the monuments of national importance, the protection
of which is a duty of the State under Article 49 of the Constitution. Article 49 of the Directive
Principles of State Policy provides for the obligation of the State to protect monuments,
places and objects of national importance. In the Taj case10 the Supreme Court of India seems
to have got inspiration from Article 49 while protecting the Taj Mahal, a monument protected
under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, from
harmful Industrial emissions originating in and around Agra.

Article 51(c) directs the State to foster respect for international law and treaty obligations in
the dealings of organised peoples with one another. Therefore, in view of the range of
international treaties law and treaty obligations in Article 51 (c), read to conjunction with the
specific treaty provision, may also serve to strengthen the hands of pro-conservation judge.

Article 51A: Fundamental duties:

It shall be the duty of every citizen of India

(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures; Then Indian Constitution has imposed a
joint responsibility upon the State; and every citizen of India to protect and improve the
natural environment. In the words of Ranganath Mishra, J.:

Preservation of environment and keeping the ecological balance unaffected is a task which
not only Government but also very citizen must undertake. It is a social obligation and let is
remind every citizen that it is his fundamental duty as enshrined in Article 51-A (g) of the
Constitution11

After making reference to Article 48-A and Article 51-A (g), the High Court of Himachal
Pradesh concluded-

10
M.C. Mehta v. Union of India, AIR 1997 SC 734
11
Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1987 SC 359, 364

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Thus there is both a Constitutional pointer to the State and a Constitutional duty of the
citizens not only to protect but also to improve the environment and to preserve and
safeguard the forests, the flora and fauna, the rivers and lakes and all the other water
resources of the country. The neglect or failure to abide by the pointer or to perform the duty
is nothing short of a betrayal of the fundamental law which the State and, indeed, every
Indian high or low, is bound to uphold and maintain.12

Provisions under Criminal Law:

In addition to the provisions of CrPC, chapter XIV of the Indian Penal Code deals
with the Public Nuisance. It is undoubtedly an offence affecting the public health,
safety, convenience, decency and morals. Under the penal law of India, nuisance is of
two kinds: public and private.
Public or common nuisances, which affect the public, and are an annoyance to all
citizens are treated as public wrongs. Thus a person trotting rams trained to fight in a
market place, a person fouling the water of a streamlet by putting into it bundles of
stalks of tur plants, a person throwing dust and sweeping on the road in front of his
house and thus making the atmosphere noxious to health, a woman keeping on her
premises vegetable matter which caused a smell offensive to a person using the public
street were guilty of public nuisance.

Section 268 of the IPC deals with the Public Nuisance which states, A person is guilty
of a public nuisance who does not act or is guilty of an illegal omission which causes
any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury,
obstruction, danger or annoyance to persons who may have occasion to use any
public right.

Punishment:

Environmental law violators are usually hit with criminal fines, probation, jail time, or a
combination of these punishments. While jail time may be the most formidable punishment
for individuals who commit environmental crimes, fines are intended to deter large

12
Kinkri devi v. State of Himachal Pradesh, AIR 1988 HP 4,8.

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corporations from violating environmental laws and regulations. Without the threat of heavy
monetary punishment, some corporations might find that noncompliance is more cost-
effective than obeying the law. Environmental crime fines are meant to offset the financial
allure of activities such as illegal dumping.

Enforcement is often carried out by joint task forces, which are composed of representatives
from federal, state, and local organizations. At the federal level, the Environmental Protection
Agency (EPA) has enforcement authority over environmental law violations.

Therefore using criminal law machinery is not a bar even as per the Environment (Protection)
Act, 1986.

In this the main section which was upheld by the court was Section 133 of the CrPC.

Section 133: Conditional order for removal of nuisance.

1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other


Executive Magistrate specially empowered in this of behalf by the State
Government, on receiving the report of a police officer or other information
and on taking such evidence (if any) as he thinks fit, considers-

a) that any unlawful obstruction or nuisance should be removed


from any public place or from any way, river or channel which
is or may be lawfully used by the public; or

b) that the conduct of any trade or occupation, or the keeping of


any goods or merchandise, is injurious to the health or physical
comfort of the community, and that in consequence such trade
or occupation should be prohibited or regulated or such goods
or merchandise should be removed or the keeping thereof
regulated; or

c) that the construction of any building, or, the disposal of any


substance, as is likely to occasion configuration or explosion,
should be prevented or stopped; or

d) that any building, tent or structure, or any tree is in such a


condition that it is likely to fall and thereby cause injury to

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persons living or carrying on business in the neighbourhood or
passing by, and that in consequence the removal, repair or
support of such building, tent or structure, or the removal or
support of such tree, is necessary; or

e) that any tank, well or excavation adjacent to any such way or


public place should be fenced in such manner as to prevent
danger arising to the public; or

f) that any dangerous animal should be destroyed, confined or


otherwise disposed of, such Magistrate may make a conditional
order requiring the person causing such obstruction or
nuisance, or carrying on such trade or occupation, or keeping
any such goods or merchandise, or owning, possessing or
controlling such building, tent, structure, substance, tank, well
or excavation, or owning or possessing such animal or tree,
within a time to be fixed in the order-

to remove such obstruction or nuisance; or

to desist from carrying on, or to remove or regulate in


such manner as may be directed, such trade or
occupation, or to remove such goods or merchandise, or
to regulate the keeping thereof in such manner as may
be directed; or

to prevent or stop the construction of such building, or


to alter the disposal of such substance; or

to remove, repair or support such building, tent or


structure, or to remove or support such trees; or

to fence such tank, well or excavation; or

to destroy, confine or dispose of such dangerous animal


in the manner provided in the said order; or, if he
objects so to do, to appear before himself or some other
Executive Magistrate subordinate to him at a time and

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place to be fixed by the Order, and show cause, in the
manner hereinafter provided, why the order should not
be made absolute.

2) No order duly made by a Magistrate under this section shall be called in


question in any Civil Court. Explanation- A" public place" includes also
property belonging to the State, camping grounds and grounds left unoccupied
for sanitary or re-creative purposes.

Conditions Precedent for the application of Section 133 of CrPC:

In order to provide a sanction under Section 133 the Magistrate must be satisfied that-

1. It is a public nuisance i.e. the number of persons injuriously affected is so


considerable that they may reasonably be regarded as the public or a portion of
it.

2. It is not a private dispute between different members of the public for which
the proper forum is the civil court.

3. It is a case of great emergency of imminent danger to the public interest.

Section 133 CrPC viz-a-viz other Special Laws:

There are other special or local laws dealing with nuisance. But the Magistrate's
power to act under Section 133 is not affected by them. Even the Water (Prevention
and Control of Pollution) Act, 1974 has not taken away powers of the Sub-Divisional
Magistrate under Section 133 CrPC. The Sub-Divisional Magistrate has power to
close a factory causing pollution, when appreciation certificate from the Pollution
Control Board is not produced. Section 24 of the Environment (Protection) Act, 1986
reads:

1. Subject to the provisions of sub-section (2), the provisions of this Act and the
rules or orders made therein shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act.

2. Where any act or omission constitutes an offence punishable under this Act
and also under any other Act then the offender found guilty of such offence
shall be liable to be punished under the other Act and not under this Act.

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Other Provisions for Environmental Degradation:

1. Air Pollution Act, 1981:

Air pollution in India is quite a serious issue with the major sources being fuelwood and
biomass burning, fuel adulteration, vehicle emission and traffic congestion. In autumn and
winter months, large scale crop residue burning in agriculture fields - a low cost alternative to
mechanical tilling - is a major source of smoke, smog and particulate pollution.13 India has a
low per capita emission of greenhouse gases but the country as a whole is the third largest
after China and the United States.14 A 2013 study on non-smokers has found that Indians
have 30% lower lung function compared to Europeans.15
The Air (Prevention and Control of Pollution) Act was passed in 1981 to regulate air
pollution and there have been some measurable improvements. However, the
2016 Environmental Performance Index ranked India 141 out of 180 countries.
In 2015, BJP government in the centre with the Ministry of Environment, Forest and Climate
Change, Government of India launched National Air Quality Index to the public
involving IIT Kanpur.

Punishment:

40. Offences by companies.16

(1) Where an offence under this Act has, been committed by a company, every person who,
at the time the offence was committed, was directly in charge of, and was responsible to, the
company for the conduct of the business of the company, as well as the company, shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and punished
accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any
punishment provided in this Act, if he proves that the offence was committed without his
knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act
has been committed by a company and it is proved that the offence has been committed with
the consent or connivance of, or is attributable to any neglect on the part of, any director,
manager, secretary or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
13
Badarinath, K. V. S., Kumar Kharol, S., & Rani Sharma, A. (2009), Long-range transport of aerosols from
agriculture crop residue burning in Indo-Gangetic Plainsa study using LIDAR, ground measurements and
satellite data. Journal of Atmospheric and Solar-Terrestrial Physics, 71(1), 112-120
14
Bob Weinhold , Fields and Forests in Flames: Vegetation Smoke and Human Health, National Institutes of
Health
15
"Indians have 30% weaker lungs than Europeans". Times of India. Sep 2, 2013.
16
the air (prevention and control of pollution) act, 1981

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Explanation.-For the purpose of this section,-

(a) "company" means any body corporate, and includes a firin or other association of
individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

41. Offences by Government Departments.17

(1) Where an offence under this Act has been committed by any Department of Government,
the Head of the Department shall be deemed to be guilty of the offence and shall be liable to
be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department
liable to any punishment if he proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act
has been committed by a Department of Government and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any neglect on the
part of, any officer, other than the Head of the Department, such officer shall also be deemed
to be guilty of that offence and shall be liable to be proceeded against and punished
accordingly.

2. Water (Prevention and Control of Pollution) Act, 1974:

The government formulated this act in 1974 to prevent the pollution of water by industrial,

agricultural and household wastewater that can contaminate our water sources. Wastewaters

with high levels of pollutants that enter wetlands, rivers, lakes, wells as well as the sea are
serious health hazards.

Controlling the point sources by monitoring the levels of different pollutants is one way to

prevent pollution, by punishing the polluter. Individuals can also do several things to reduce

water pollution such as using biodegradable chemicals for household use, reducing the use of

pesticides in gardens, and identifying polluting sources at work places and in industrial units
where oil are or other petroleum products and heavy metals are used.

17
THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

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The main objectives of the Water Act are to provide for prevention, control and abatement of

water pollution and the maintenance or restoration of the wholesomeness of water. It is

designed to assess pollution levels and punish polluters. The Central Government and State
Government have set up PCBs to monitor water pollution.

The Water Act, 1974 with certain amendments in 1978 is an extensive legislation with more

than sixty sections for the prevention and control of water pollution. Among other things, the

Act provides for constitution of central and State Boards for preventing water pollution,

power to take water samples and their analysis, discharge of sewage or trade effluents,

appeals, revision, minimum and maximum penalties, publication of names of offenders,

offences by companies and Government departments, cognizance of offences, water


laboratories, analysis etc.

Prevention and control of water pollution is achieved through a permit or consent

administration procedure. Discharge of effluents is permitted by obtaining the consent of the

State Water Board, subject to any condition they specify. Any person who fails to comply

with a directive of the State cannot, however, entertain in suit under this Act unless the suit is
brought by, or with the sanction of the State Board.

Water Cess Act, 1977 According to this Act, anyone consuming water has to pay certain

amount of cess depending on:


1. Whether the industry is using water for industrial cooling, spraying in mine pits or boilers
feed,

2. For domestic purposes.

3. In processing, whereby water gets polluted and pollutants are easily biodegradable.

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3. The Noise Pollution (Regulation and Control) (Amendment) 2002 - lays down

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

4. Factories Act, 1948


CHAPT IV, SEC 41 G of the act deals with it. SAFETY
Management has to set up a safety committee comprising of
representatives of both management and workers to bridge cooperation. Composition
of the committee is prescribed and the tenure is also fixed.
Functions are also defined:
Committee should deal with all matter of safety, health and environment and
arrive at practicable solution to the problems
Undertake educational training and promotional activities
Discuss on reports of safety, environmental and occupational surveys, safety
audits, risk assessments, disaster management plans and implement the
recommendations made.

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Chapter 4

Role of Judiciary

1. To analyze the use of criminal sanctions for abatement of environmental nuisance it is


essential to consider the various precedents in this regard. In Ajeet Mehta v. State of
Rajasthan,18 it was held that stocking of fodder on a certain plot in a residential
colony constitutes pollution of atmosphere and hence public nuisance. The order
directing removal of this nuisance was held valid and the respondents were directed
not to do any business of fodder on that plot.

2. In case of Himmat Singh v. Bhagwana Ram, 19there were fodder tali in a residential
colony to which fodder was brought daily during the night by trucks which were
unloaded in the morning. This caused intolerable noise, emanating offensive smell
and spreading dust-containing particles of fodder cut. It was held as public nuisance.

3. In Nagarjuna Paper Mills Ltd. v. SDM and RDO,20 it was observed by the A.P. High
Court that the power relating to air and water pollution, the Water Act, 1974 has taken
away the power of the Sub-Divisional Magistrate to pass an order to close a factory
causing pollution.

4. The above said view was also stated by the Supreme Court in Municipal Council,
Ratlam v. Vardichan, where Their Lordships held that "when on disclosure of
existence of a public nuisance from information and evidence, the Magistrate
considers that such unlawful obstruction or nuisance should be removed from any
public place which maybe lawfully used by the public, he is to order removal of such
nuisance".21

18
1990 Cri LJ 1956 (Raj),
19
1988 Cri LJ 614 (Raj),
20
1987 Cri LJ 2071 (AP),
21
(1980) 4 SCC 162

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5. Rural Litigation and Entitlement Kendra v. State of U.P., In the words of Ranganath
Mishra, J.:

Preservation of environment and keeping the ecological balance


unaffected is a task which not only Government but also very citizen must undertake. It is a
social obligation and let is remind every citizen that it is his fundamental duty as enshrined in
Article 51-A (g) of the Constitution22

6. Delhi Laws case v. Union of India, has noticed that the Indian Constitution does not
vest the legislative and judicial powers in the Legislature and the Judiciary in clear
terms. The framers, in effect, have imported the essence of the modern doctrine of
separation of powers, applying the doctrines of constitutional limitation and trust.
None of the organs of government under the Constitution can, therefore, usurp the
function or powers which are assigned to another organ by the Constitution. On the
same principle, none of the organs can divest itself of the essential functions which
belong to it under the Constitution. As Justice Kania observed-
Although in the Constitution of India there is no expression of
separation of powers, it is clear that a Legislature is created by the Constitution and
detailed provisions are made for making that Legislature pass laws. Is it then too
much to say that under the Constitution the duty to make laws, the duty to exercise its
own wisdom, judgment and patriotism in making laws is primarily cast on the
Legislature? Does it not imply that unless it can be gathered from other provisions of
the Constitution other bodies-executive and judicial, are not intended to discharge
legislative functions?23

7. Law Society of India v. Fertilizers and Chemicals, Travancore Ltd.,24 held that the
deprivation of life under Article 21 of the Constitution of India comprehend certainly
deprivations other than total deprivation. The guarantee to life is certainly more than
immunity from any annihilation of life. Right to healthy environment is part of the right
to life.

22
AIR 1987 SC 359, 364
23
IBID 16
24
A.I.R. 1994 Kerala 308.

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Chapter 5

Comparative Study

ENVIRONMENT LAW IN USA:-

United States environmental law concerns legal standards to protect human health and
improve the natural environment of the United States. While subject to criticism at home and
abroad on issues of protection, enforcement, and over-regulation, the country remains an
important source of environmental legal expertise and experience

LEGAL SOURCES:

Laws from every stratum of the laws of the United States pertain to environmental issues.
Congress has passed a number of landmark environmental regulatory regimes, but many
other federal laws are equally important, if less comprehensive. Concurrently, the legislatures
of the fifty states have passed innumerable comparable sets of laws. These state and federal
systems are foliated with layer upon layer of administrative regulation. Meanwhile, the US
judicial system reviews not only the legislative enactments, but also the administrative
decisions of the many agencies dealing with environmental issues. Where the statutes and
regulations end, the common law begins.25

ENVIRONMENTAL POLICY OF UNITED STATES:

The environmental policy of the United States is federal governmental action to regulate
activities that have an environmental impact in the United States. The goal of environmental
policy is to protect the environment for future generations while interfering as little as
possible with the efficiency of commerce or the liberty of the people and to limit inequity in
who is burdened with environmental costs. This policy grew mainly out of the environmental
movement in the United States in the 1960s and 1970s during which several environmental
laws were passed, regulating air and water pollution and forming the Environmental

25
Second Circuit Clarifies Superfund Cost Recovery and Liability Issues (analyzing court application of
statutory provisions of CERCLA, also known as Superfund.)

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Protection Agency (EPA).26 Partially due to the high costs associated with these regulations,
there has been a backlash from business and politically conservative interests, limiting
increases to environmental regulatory budgets and slowing efforts to protect the environment.
Since the 1970s, despite frequent legislative gridlock, there have been significant
achievements in environmental regulation, including increases in air and water quality and, to
a lesser degree, control of hazardous waste. Due to increasing scientific consensus on global
warming and political pressure from environmental groups, modifications to the United
States energy policy and limits on greenhouse gas have been suggested.

FEDERAL REGULATION:

Consistent with the federal statutes that they administer, US federal agencies promulgate
regulations in the Code of Federal Regulations that fill out the broad programs enacted by
Congress. Primary among these is Title 40 of the Code of Federal Regulations, containing the
regulations of the Environmental Protection Agency (EPA). Other important CFR sections
include Title 10 (energy), Title 18 (Conservation of Power and Water Resources), Title 21
(Food and Drugs), Title 33 (Navigable Waters), Title 36 (Parks, Forests and Public Property),
Title 43 (Public Lands: Interior) and Title 50 (Wildlife and Fisheries).

JUDICIAL DECISIONS:

The federal and state judiciaries have played an important role in the development of
environmental law in the United States, in many cases resolving significant controversy
regarding the application of federal environmental laws in favor of environmental interests.
The decisions of the Supreme Court in cases such as Calvert Cliffs Coordinating Committee
v. U.S. Atomic Energy Commission (broadly reading the procedural requirements of NEPA),
Tennessee Valley Authority v. Hill (broadly reading the Endangered Species Act), and, much
more recently, Massachusetts v. EPA (requiring EPA to reconsider regulation of greenhouse
gases under the Clean Air Act) have had policy impacts far beyond the facts of the particular
case.

26
Dye, Thomas (2011). Understanding Public Policy. Boston: Longman. p. 227.

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ENFORCEMENT:

In the United States, violations of environmental laws are generally civil offenses, resulting
in monetary penalties and, perhaps, civil sanctions such as injunction. Many environmental
laws also provide for criminal penalties for egregious violations. Environmental agencies
often include separate enforcement offices, with duties including monitoring permitted
activities, performing compliance inspections, issuing citations and prosecuting wrongdoing
(civilly or criminally, depending on the violation). EPA's Office of Enforcement and
Compliance Assurance is one such agency. Others, such as the United States Park Police,
carry out more traditional law enforcement activities.

Adjudicatory proceedings for environmental violations are often handled by the agencies
themselves under the structures of administrative law. In some cases, appeals are also
handled internally (for example, EPA's Environmental Appeals Board). Generally, final
agency determinations may subsequently be appealed to the appropriate court.

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Conclusion

It is evident and clears that even prior to the development of the Environment Protection Act,
1986 and the Rio Declaration the Indian judiciary has set up a new jurisprudence for the
environment protection and also for the prevention of environmental pollution. If this thought
is interpreted further i.e. use of criminal machinery for the protection of the environment, it is
sure that the environmental problems can be solved speedily and economically, and a
revolutionary change can be brought not only to safeguard the environment but also
safeguard the lives of the public at large. Because in the present context as said by Justice
V.R. Krishna Iyer "it is not how many laws we have, it is how effectively we implement".
Hence invoking Section 133 CrPC and other relevant criminal provisions under different laws
will pave a way for the better environmental governance and also for the abatement of
environmental nuisance.

A mix of civil and criminal processes and sanctions would seem appropriate and does exist in
most jurisdictions it is the balance between the two which is important. Civil law would
regulate most aspects of environmental regulation and civil sanctions and provide most of the
"long stop" threat that drives the cooperative system. Certainly more narrowly defined
criminal offences, providing tougher threats of punishment and sanctioning, will operate
outside of and in support of the cooperative scheme where it is appropriate to do so, such as
extreme negligence or wilful disregard for environmental or human health. The court's
discretion as regards criminal penalties should also be expanded to provide a wide range of
sanctions.

Environmental law has seen considerable development in the last two decades in India.
Most of the principles under which environmental law works in India come within this
period. The development of the laws in this area has seen a considerable share of initiative by
the Indian judiciary, particularly the higher judiciary, consisting of the Supreme court of
India and the High Court of states.

PIL has proved to be an effective tool in the area of environmental protection. The Indian
judiciary adopted the technique of public interest litigation for the cause of environmental
protection in many cases. The basic ideology behind adopting PIL is that access to justice

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ought not to be denied to the needy for the lack of knowledge or an finances. In PIL, a public
spirited individual or an organization can maintain petition on behalf of poor and ignorant
individuals. Due to PIL, the court indicated contractors of indiscriminate mining operations
which had disturbed and destroyed ecological balance and ordered for their closure in the
interest of protection of natural environment and conservation of natural resources for public
health.

The Supreme Court recognized several unarticulated liberties which were implied in
Article 21 of the constitution like the right to free legal assistance and the prisoners to be
treated with dignity were recognized as part of fundamental right. Supreme court also
interpreted the right and personal liberty to include the right to wholesome environment. The
most important achievement of the Indian constitution is the constitutionalisation of the
environmental problems by the apex court. Before the year of 1980, there were legislation
about control of environmental pollution but little had been done to really make pollution
control. But in the present time the Supreme court of India expand the meaning of
environmental Right. The Supreme court making interpretation which led to the creation of
new rights. Eventually under Article 21, this court has created new rights including the right
to health and pollution free environment.

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Suggestions:

Mandatory recommendations for citizens/associations:

(1) Not to throw any waste on the streets, lanes, bylane, footpaths, open spaces, water bodies
etc.
(2) Store the organic (food) and bio-degradable waste at source in personal domestic bins.
(3) Segrate/store separately recyclable waste/non bio-degradable wastes as well as domestic
hazardous waste at source.
(4) Provide community bin/bins in commercial complexes.
(5) Deposit domestic, trade, institutional wastes in the food cart/recycles/community
bins/vehicles as may be notified by the local body.
(6) Trim the garden waste by the days notified by the local body.

Mandatory recommendations for local bodies/state governments:

(1) Initiate public awareness campaigns through Information Education and Communications
(IEC) strategy.
(2) Primary collection of waste from doorstep/community bins with or without community
participation.
(3) Street sweeping on all days in the year irrespective of Sundays and Public holidays,
making adequate provision for giving statutory weekly off to the workers or compensating
them for working on holidays, etc.
(4) Provision of mobile/bulk community waste storage containers/tractors trolleys
at the waste storage depots.
(5) Transportation of waste at regular intervals before the containers start overflowing.

Discretionary recommendations for urban local bodies:

(1) Monthly charging for door-to-door collection based on income groups may be
implemented.

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(2) The vehicles for transporting the waste from the transfer point to the disposal site should
be of appropriate design, suiting the waste characteristics.
(3) Composting of municipal solid waste should be the next appropriate option after land
filling.
(4) Participation of private sector in setting up pilot plant utilizing appropriate technologies
for urban solid waste management should be encouraged.

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BIBLIOGRAPHY

Books Referred:

1. Environmental Law & Policy in India Shyam Diwan, Armin Rosencranz


2. The Environmental Law in India--- P. Leela Krishnan. Butterworths- India.
3. Environmental Law--- P.S. Jaswal, Allahabad Law Agency

Websites Referred:
http://envionmentclimatechanges.blogspot.in/2012/06/municipal-council-ratlam-vs-
vardhichand.html
http://www.waterlex.org/waterlex-
legadatabase/index.php?r=legalDocument/customView&id=244
https://indiankanoon.org/doc/440471/
http://www.legalserviceindia.com/articles/art222.htm
https://www.academia.edu/2624677/Cultural_economic_and_social_sustainability_of
_heritage_tourism_issues_and_challenges
http://www.envfor.nic.in/legis/air/air1
https://books.google.co.in/books?id=MNjaAAAAMAAJ&redir_esc=y
http://www.directtextbook.com/isbn/9780205757428

Journal:
H.M. Seervai, Constitutional Law of India: A Critical Commentary, 2019 (Vol.2,
1993).
Indira priyadarshini, G. Dr. & Prof. K. Uma Devi Environmental law & sustainable
development, 2010

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