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NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

I YEAR MBL ENVIRONMENTAL LAW - Model Answers

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Part A

I.U
12 Marks Answer:

Discuss a) Public Trust Doctrine and b) Polluter Pays Principle

The development of environmental law jurisprudence in India over the years has received
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immense contribution from the Indian judiciary. This is because the domain of environmental
law is not restricted merely to statutes and executive orders but also involves several rules and
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principles which are endorsed and incorporated into Indian law through judicial pronouncements.
This process has resulted in the progressive integration of our environmental law with the
international standards. Though these principles are not found to be expressly mentioned in any
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of the legislations, they are seen reflected in the constitutional principles as enshrined in the
fundamental rights (Article 21.), directive principles of state policy (Article 48A) and
fundamental duties (Article 51A (g)). Art. 39 of the Constitution also mandates the state that
ownership and control of the material resources are distributed to sub-serve the common good.

State has a proprietary interest in natural resources and acts as a guardian and trustee. Most
Constitutions address ‘the people’ as the owner of the natural resource. The Indian Constitution,
as detailed earlier too attaches such a relation. Two of such principles, which detail as to how the
resources are to be managed are the Public Trust Doctrine and the Polluter Pays Principle.

U The Magna Carta too had references and strengthened public rights. in Arnold v. way back in 1821. I. The same was later reiterated in Illinois Central Railroad Co. the Illinois Legislature had granted an . the shores of the sea. a) Public Trust Doctrine This Common law doctrine means that certain natural resources owing to their unique characteristics are to be held in trust by the sovereign on behalf of the citizens such that they cannot be subjected to ownership either by the state or by private actors. His codified work.S rights divesting citizens of their common right. v. This casts a fiduciary duty on the state as a trustee not to arbitrarily alienate the trust property. It is to be understood that the Stockholm Declaration. claiming that original grant should not have been permitted in the first place. It also had references which made it mandatory to remove obstacles to free navigation in rivers. Justinian. who held that the sea. Delving into the principles. the air and running water was common to everyone. in an environment of a quality that permits a life of dignity and . A subsequent legislature sought to revoke the grant. People of the State of Illinois. The State as a trustee is under a legal duty to protect the natural resources. The rudiments of this can be seen in the works of the Roman Emperor. These resources meant for public use cannot be converted into private ownership. 1972. Even in the Mono Lake Case. Such resources are to be protected for the enjoyment of the general public and they shall not be permitted for private ownership or commercial purpose. equality and adequate conditions of life. The court held that the public trust doctrine prevented the government from alienating N the public right to the lands under navigable waters. Mundy it was held that the govt. King John abolished exclusive fishing and hunting rights. was one of the first international consensus arrived at to take steps to protect the environment. cannot grant water . it can be seen that Principle 1 proclaims that “man has the fundamental right to freedom. in USA.L enormous portion of the Chicago harbor to the Illinois Central Railroad. In USA. It is also to be noted that following this principle. Corpus Juris Civilis gives an indepth analysis of this concept. In this case. the court held that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment.

” This was one of the many steps which were taken to bring about this concept. The Respondent who had interest in the venture subsequently authorized the encroachment made by them while he was holding the position as a .’ . This concept was cemented into our legal system by the Supreme Court of India in the case of M I. and he bears a solemn responsibility to protect and improve the environment for present and future generations.L traced the development of the principle from the Roman law concepts of res nullius (resources owned by no one) and res communis (resource held by everyone in common).wellbeing.21. the Courts were able to project the same. Mehta v. the Right to Life. N The three kinds of restrictions imposed on the governmental authority by the doctrine are: a) The property subject to the trust must not only be used for a public purpose. popularly known as the Span Motel Case. Justice Kuldip Singh who delivered the judgment . Kamal Nath. stopped unauthorized mining causing environmental damage. Government should seek to prevent both the abuse of public resources by private entities as well as the ‘tragedy of commons. The court directed the motel to pay compensation by way of cost for the restitution of the environment. but must be made available for use by the general public b) The property must not be sold even for a fair cash equivalent c) The property must be maintained for particular types of uses The principle was later used by the courts in several other judgments and has been used to guarantee access to water bodies. holding that this “is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance. State of Uttar Pradesh.S central minister. Indian Experience: As far as India is concerned in Rural Litigation & Entitlement Kendra v. wildlife preserves etc. recreational natural spaces. The resort owners sought to divert the course of river Beas which had the potential of causing landslides and floods. beaches. Reading such rights under the broad ambit of Art. The case involved the leasing out of an ecologically fragile land to a private entity by the government for the construction of a resort.U C.

N This is a principle in international environmental law which holds the polluter responsible for the environmental damage caused and to bear the expenses of carrying out pollution prevention measures. The Public Trust Doctrine stands for the proposition that some of nature’s gifts inherently belong to all people. Radhey Shyam Sahu the question was to decide between constructing a Public park or shopping complex. The paramount I. The nature of the word ‘vest’ must be seen in the context of the PTD. it has a broader application. The rule of ‘strict liability’ as evolved in the English case of Rylands v. v. Mehta v. a petition was filed seeking the closure of a factory involved in manufacturing of hazardous products and during the pendency of the case Oleum gas leaked out of the factory causing the death and injury to several persons. v. Flecther. The Court opined that “To allow the construction would mean that citizens “would be deprived of the quality of life to which they are entitled under the law.S Invoking environmental rights as human rights amplifies the public’s right. . provides that a person who for his own purpose brings on to his land and keeps their anything that is likely to do mischief should be done at his own peril. if he fails to do so and if it escapes and causes damage . In this case. Builders Pvt.C. Reliance Industries Ltd. UOI that the Supreme Court formulated this principle as an absolute liability on the industries who are engaged in hazardous and inherently dangerous activity.U consideration to be taken into account was public interest. Ltd.L b) Polluter Pays Principle The principle mandates the polluter to pay for the damage caused by him on the environment. The 2G Spectrum case laid down that natural resources are public goods. The government must steward these to prevent both private use of public resources and the “tragedy of the commons” from unfettered public access to these shared resources. now and in the future. to share in ecological gifts fundamental to human health and wellbeing. The court held that the constitutional mandate is that natural resources belong to the people in this country. Hence doctrine of equality which arises from justice and fairness. It was in the case of M.I. Even though this doctrine has been applied in cases dealing with environmental jurisprudence.In M. should guide the state.” In Reliance Natural Resources Ltd. .

Moreover with the advent of privatisation many of these lands came to be acquired by the government for developmental purposes. State of Gujarat. it was further stated that the compensation awarded must have correlation not only to the capacity of the enterprise but also I.which is the natural consequence of it he shall be prima facie liable to compensate for the damage caused. . have been the source of food and shelter for a large section of the tribal population in India who in turn has ensured the conservation of forests through customary and religious practices. The application of ‘absolute liability’ makes the polluter accountable for the damage irrespective of the existence of the exceptional circumstances. Court reiterated the principle and stated that absolute liability would require not only compensating the victims of pollution but also bearing the cost of restoring environmental degradation. Supreme Court accepted and applied this principle for the first time in Indian council for Enviro- legal Action v. However they have always been secluded from deriving the benefits under different legislations and have remained marginalized. The case involved the discharge of toxic effluents from the chemical factories in Bichhri. In that process many of the forest dwellers were evicted/displaced from their lands or their rights were infringed. The ways in which both these principles have been put to ample use by the court do clearly give an idea about their importance. Godavarman Thirumulpad v Union of India (2001) which extinguished the rights of the traditional dwellers on the forest land thereby supporting the concerns of non-forest dwellers.. In Deepak Nitrate v.S Part B . 2006 N The forests in India. It is to be noted that both these principles have played a great role in shaping the way and manner in which courts have looked into the matter.N.U the magnitude of harm caused. UOI.L Write Explanatory Notes – 10 Marks Forest Rights Act. which had polluted the water in the wells and streams making it unfit for human consumption. . since time immemorial. The Act came in the background of a Supreme Court judgment in T. This strict liability is however subject to certain exceptions which waive off the responsibility in certain cases.

grazing and access to traditional seasonal resources e) Right for conversation of pattas or leases issued by any local authority/state government f) Right of settlement and conversation of forest villages into revenue villages g) Right to in-situ rehabilitation or alternative land in cases where the dwellers have been evicted/displaced illegally . The principal objectives of the Act are to redress the historical injustice done to the traditional forest dwelling Scheduled Tribes. use and dispose of ‘minor forest produce’ which has been traditionally collected within and outside the village boundaries d) Right of uses or entitlements such as fish and other product of water bodies.U rights and duties that were inherent in the forest dwellers and also as said earlier. the said legislation tries to imbibe the very spirit that forms the basis of Art. Apart from giving a clear idea as to who all would come under the scope of the Act. to address their long standing insecurity of tenurial and access rights. to ensure that there is a substantial claim. to reduce the historical injustice that was meted to them. which were denied to them due to the continuance of colonial forest laws in India. It tried to ensure that the Act was able to encapsulate the I. N b) Right to hold forest land and involve in individual and community cultivation for livelihood c) Right of ownership and access to collect. 2006 was thus enacted to deal with the rights of the forest-dwellers to the land and other forest resources. Chapter II of the Act provides for a number of rights which includes: . to insulate them from forced displacement resulting from developmental interventions of the State and to vest them with forest rights. It aimed to provide a framework for recording forest rights and also to recognize them as integral to the very survival and sustainability of forest eco-system.Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act or in short the Forest Rights Act. The law necessitated that such Traditional forest dwellers should be living in such forests for 3 generations. 14 of the Constitution and .S tries to better and widen the horizon for such marginalized communities.L a) Right to residence including community tenures of habitat and habitation of primitive tribal groups and pre-agricultural communities.

hospitals. The dweller cannot be evicted from the forest land under his occupation during the pendency of the verification process.S occupation of forest land for the recognition of forest rights. The rights thus conferred by the Act are only inheritable and not transferable or I. One of the most notable features of the Act is that it also provides a framework for recording the forest rights and recognizes them as integral to the very survival and sustainability of the forest eco-system. forest. hospitals. A ceiling limit of 4 hectares is prescribed under the Act regarding the .U alienable and should be registered in the name of both the spouses. tanks etc. It also provides for limited diversion of forest land (upon recommendation of grama sabha) and also makes provision for schools. ecological sensitive areas and water sources and also to ensure that the habitat is preserved from destructive practices. These ideas try to convey the idea that there may be certain things that need be protected and giving rights to forest dwellers should not in any way be a detriment. This . roads. Critical wildlife habitats and minor forest produce also provides for an insight into this Act. the Act designates the Gram Sabhas as the competent authority to determine the nature and extent of individual and community rights that may be accorded to the forest dwellers. roads. N The Act also casts duties on the holders of the forest rights to protect wildlife. biodiversity. tanks etc. It is important to note that section 3(2) of Act on the other hand empowers the central government to exercise limited forest diversion to make provision for schools. The addition of Community reserves. h) Right to enjoy the statutorily recognized customary or traditional rights (access to biodiversity and community right to IP and traditional knowledge) It is also laudable that the said Act provides for a right to basic civic amenities. or in other cases in the name of the head of a household. upon the recommendation of the Gram Sabhas. In this regard.L by far provides a solution for one of the most common problems that are faced as far as the forest dwellers are concerned. . It is also to be noted that displacement can be done only after ensuring total rehabilitation.

Short Note: 8 marks Corporate Environmental Liability . Accordingly.S In common parlance. voluntary guidelines were issued by the government as Corporate Social Responsibility Voluntary Guidelines 2009 and National Voluntary Guidelines on Social Environmental and Economic Responsibilities of Business. which need be done away with as there is a need to ensure that grassroot level governance is present and able I. It is also seen that the Grama sabha has a marginalised role. The concept of making the business . The European Council defines Corporate Social Responsibility as a concept whereby companies integrate social and environmental concerns in their business operations and interactions with their stakeholders on a voluntary basis. Environmental CSR also known as Corporate Environmental Responsibility (CER) extends that responsibility to environmental concerns thus N seeking the corporates to indulge in environmentally friendly actions. it has constantly been subjected to scathing criticism. That apart. The multiplicity of authorities also does precious little to solve the problem and create conflicting opinions. 2011. not required by law.Despite the noble intentions reflected in the legislation. beyond and above the mandates of law. the N C Saxena Committee and the National Advisory Council had pointed out several flaws in the functioning of the Act including the lack of adequate tribal representation in the Gram Sabha resulting in the banishment of communal rights. . in short. Corporate Environmental Responsibility can be defined as the duty of the corporation to mitigate its impacts on the environment. There is also a problem of characterization of rights and problem of inclusion & exclusion. Vendata etc. it is also alleged that there is an incompatibility among different laws which lead to a lack of harmony.L entities utilize their resources not only for their profits but also for the community is known as Corporate Social Responsibility (CSR).U to tackle the many problems that forest dwellers face. Thus. These activities are meant to be voluntary and altruistic. The National Forest Rights Act Committee. One of the major concerns has been the dilution of the implementation of the law in order to facilitate industrial projects of Posco. Corporate Environmental Responsibility is understood as a part and parcel of the broader concept of Corporate Social Responsibility.

L 5. with the enactment of the new Companies Act. 2011. The National Voluntary Guidelines On Social. promoting efficient use of energy and environment friendly technologies. bear the cost of pollution abatement 6. efficient and environment friendly technologies . 2013 in India. develop Environment Management Systems (EMS) 8. for spending the amount . manage and reduce waste.1000 crore or more or a net profit of Rs. take measures to check and prevent pollution . and make efforts to restore the environment. recycle. Section 135 (5) of the Act requires every company of net worth of Rs. Environmental And Economical Responsibilities Of Business. 500 crore or more or turnover of Rs. protect. ensure optimal use of resources like land and water. ensure the sustainability of resources 2. adopt cleaner production methods N 7. use of renewable energy 4.Respect for Environment entails companies should do the following: -take measures to check and prevent pollution. manage natural resources in a sustainable manner. report environmental performance However.S 3. Principle 6 lays down that business should respect. also played an great role in formulating the idea. every financial year. The Core Elements of this Principle entails the businesses to do the following: Optimal and responsible utilization of I.5 crore or more to constitute a CSR board which shall formulate policies to ensure that at least 2 % of the average net profits of the company in three immediately preceding financial year are spent on CSR activity. Preference should be given to the local area and surrounding areas where it operates. proactively respond to the challenges of climate change by adopting cleaner production methods. CSR initiatives have now been mandatorily prescribed for a certain class of companies.U natural and manmade resources 1.

The purpose is to go beyond the compliance of regulatory norms for control and prevention of pollution with various measures like waste minimization and adoption of clean technology. This coupled with inertia of action too leads to a situation where the same is not followed. It provides for activities relating to ensuring environmental sustainability. This is because the N enforcement is marred with shortcomings. Apart from this there are jurisdictional conflicts and also a lack of coordination among different agencies of implementation.L performance. SAIL too has an exclusive Corporate Environmental Policy which is .S an integral part of its business philosophy and values. This need be checked and stringent laws be enforced and punishments and penalties need be provided for all the concerned. Apart from this one of the main problem is that provisions directly relating to the corporate environmental and social responsibilities in the form of guidelines are not at all binding in nature. . 8 task forces comprising of experts and members from institutions and industry associations have been constituted to monitor and to provide guidance to the industries for adopting necessary pollution abatement measures. reduction in pollution.U One of the acclaimed illustrations of CER initiatives in India is the rain water harvesting project called ‘Boond’ developed by the Bharat Petroleum Corporation in association with the Oil Industries Development Board wherein draught-stricken villages are identified to convert them into water-sufficient areas. even if the new Companies Act has made it mandatory. The list of activities that may be incorporated by the companies in their CSR policies is provided in Schedule VII of the Act. There is no dearth of law to regulate corporates but their impact is limited. This should change. There is a lack or inadequacy of skill and less than satisfactory infrastructural facilities which pose a huge problem. was launched in 2013. I. The Charter has set targets in respect of conservation of water and energy. One of the things that need be curbed is that industries are often able to hide their violations and non-compliance. elimination of toxic pollutants in an environmentally sound manner. Apart from this the Charter on Corporate Responsibility for Environmental Protection. The commitment is directed towards contributing to a clean and sustainable environment and striving to enhance its environmental .earmarked for Corporate Social Responsibility activities. there are ways out and action cannot be taken.