NAME –MEHRAAN AHMED

COURSE – B.A.LL.B(HONS.) S.F

EXAMINATION ROLL NO. – 17BLWS132
CLASS ROLL NO. –28
 UNIT-I
1. What do you understand by sustainable development? Trace its evolution in the
international environmental jurisprudence. Comment upon the role and contribution of
India towards the objective of implementing sustainable development.
ANSWER

Meaning of Sustainable development

Sustainable development connotes the process by which people satisfy their present needs and
improve their quality of life while safeguarding the ability of the future generations to meet their
own needs. Each year the number of human beings increases, but the amount of natural resources
with which to sustain this population to improve the quality of human lives remains finite. The
world population growth has been recognized as one of the most important ecological problems
facing the planet today. Yet the population question has been virtually invisible as an issue in the
environmental concerns including environmental law.
The Brundtland Report defined this phrase in terms of development that meets the needs of the
present without compromising the ability of the future generations to meet their own needs. It is
a balancing concept between ecology and development and is seen as a viable concept to
eradicate poverty and improve the quality of human life while living within the carrying capacity
of the supporting systems.
According to Johannesburg Declaration and Programme of Action 2002, economic
development, social development and environmental protection are the three
interdependent and mutually reinforcing pillars of sustainable development.
Poverty eradication, changing unsustainable patterns of production and consumption and
protecting and managing the natural resource are objectives of and essential requirements for
sustainable development.

The apex court in Vellore Citizens Forum stated that intergenerational equity, use and
conservation of natural resources, environmental protection, precautionary principle and
eradication of poverty are the essential components of the concept of sustainable development.
In Narmada Buchao Andolan v. Union of India and others, the apex court observed that
sustainable development means the type or extent of development that can take place and which
can be sustained by nature/ecology with or without mitigation. At the heart of the apex court’s
approach to sustainable development is the recognition that both development and
environment must go hand in hand. In other words, there should not be development at the
cost of environment and vice versa but there should be development while taking due care
and ensuring the protection of the environment.
 Evolution in the international environmental jurisprudence
Growing Need for Sustainable Development:
The opening lines of first human development published in 1990 runs as follows:
“The purpose of development is to create an enabling environment for the people to enjoy long
healthy and creative life. This simple but powerful truth is too often forgotten in the pursuit of
material and financial wealth”
Sustainable development is now a basis for United Nations environmental philosophy and is
already giving a sharper edge to global environmental action. Further the United nations also
focus on helping countries achieve sustainable development, reduce the impact of environmental
degradation and pollution and rehabilitate ecosystems already degraded or polluted. Further the
concept of sustainable development is encouraged, as it does not hurt the environment. Thus
what is stressed in today's world is “real” development. The challenge of globalization in the new
century is to find the rules and institutions for stronger governance - local, national, regional and
global to preserve the advantages of global markets and competition but also to provide enough
space for human community and environmental resources to ensure that globalization works for
people, not just for profits. Globalization with - ethics for people, less violation of human rights,
not more-equality - less disparity within and between nations not more - inclusion - less
marginalisation of people and country and not more - sustainability - less environmental
destruction and not more -development - less poverty and deprivation and not more.

When dealing with environmental issues one has to think and act holistically i.e. to view
everything in the world as being connected with everything else. In other words we must not
ignore interconnections and must not look at things in isolation. And so a grand view emerges in
which we see the linkages to the while universe, firstly to the immediate environment and then to
more distant environments until a global interconnection is established. From a holistic vision
must emerge practice, and here the dictum in the environment movement is to think globally and
act globally. Thinking globally implies thinking inter-connectedly i.e., with an awareness of all
the inter-connections. In effect this demand is equivalent to putting all environmental problems
on par and treating them as if they are of equal importance. Zeroing in an global environmental
problems at the beginning of environmental awareness is often viewed as succumbing to a
stratagem of the industrialized countries for getting the developing countries to fix a mess that
these countries had created, Environmental degration impledes and frustrates sustained
development.
Steps towards Attaining Sustainable Development:
 Convention on Sustainable Development:
A global step taken to achieve sustainable development was the Rio Declaration or the earth
charter in 1992, where environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it. One of the main principles
adopted was to achieve sustainable development and a higher quality of life for all people. The
following are some of the important resolutions regarding sustainable development. States
should reduce and eliminate unsustainable patterns of production and consumption and promote
appropriate demographic policies. States should co-operate to strengthen indigenous capacity
building for sustainable development by improving scientific understanding through exchanges
of scientific and technological knowledge and by enhancing the development, adaptation,
diffusion and transfer of technologies, including new and innovative technologies.
Environmental issues are best handled with the participation of all concerned citizens at the
relevant level. At the national level each individual shall have appropriate access to information
concerning the environment that is held by public authorities including information on hazardous
materials and activities in the communities and the opportunity to participate in decision making
processes. States shall facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and administration proceedings,
including redress and remedy shall be provided. States shall enact effective environmental
legislation, environmental standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply. Standards applied by some
countries may be inappropriate and of unwarranted economic and social cost to other countries,
in particular, developing countries, states should co-operate to promote a supportive and open
international economic system that would lead to economic growth and sustainable development
in all countries to better address problems or environmental degradation. States shall develop
national law regarding liability and compensation for the victims or pollution and other
environment damage. States shall cooperate in an expeditious and more determined manner to
further international law regarding liability and compensation for adverse effects of
environmental damage caused by the activities within their jurisdiction. States should effectively
co-operate to discharge or pre-vent the relocation and transfer to other states of any activities and
substances that cause severe environmental degradation are found to be harmful to human health.
In order to protect the environment the precautionary approach shall be widely applied by states
according to their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost effective measures to
prevent environmental degradation. Thus this universal convention is a giant leap towards the
attainment of sustainable development.

The role and contribution of India

Every nation would have to control the increasing pollution of environment individually for
environmental protection. In 1972, a Conference on Human Environment was held in Stockholm
which provided — to de fend and improve the human environment for present and future
generations which has become an imperative goal for mankind. Based on this, the Constitution of
India was amended in 1976, to incorporate the provisions for protection of environment and
imposing a fundamental duty upon the citizens of this country to protect and improve the
environment2 which are as follows:

Article 48A:
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.

Article 51A:
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.
Our constitution also envisages the distribution and management of material resources which
includes national and man-made resources in such a manner that their concentration and
monopoly over their views should not give rise to ecological imbalance and health hazards.

The Constitution empowers the State to make provision for securing just and humane condition
of work and for maternity relief.

The Constitution also provides that the State shall regard the raising of the level of nutrition and
the improvement of public health as among its primary duties, and the standard of living of its
people, and in particular, the State shall endeavour to bring about prohibition of the consumption
except for medical purposes of intoxicating drinks and of drugs which are injurious to health.
Under this Article, the State is duty bound to improve the public health. This constitutional duty,
can be fulfilled only in an atmosphere of clean environment.

The Constitution also provides that the State shall endeavour to organize agriculture and animal
husbandry on modern and scientific lines and shall in particular take steps for preserving and
improving the breeds and prohibiting the slaughter of cows and calves and other milch and
draught cattles which helps in maintaining ecological balance.

The Constitution also provides that it shall be the obligation of the State to protect every
monument or place or object of artistic or historic interest, declared by or under law made by
Parliament to be of national importance from spoliation, distinguishment, distraction, removal,
disposal or export, as the case may be.

Protection of monuments and places and objects of national importance includes the protection
from environmental pollution. Therefore, the State has to make efforts to improve the
environment for protecting monuments and places and objects of national importance.
The issue of sustainable development is a matter of serious concern for both the developed and
developing countries including India. However, there is a marked difference in the character of
the issues involved in two differing situations. Therefore, the conservation of natural resources,
prevention of pollution and the restoration of the degraded environment cannot be effected
universally by one and the same measures. Broadly speaking, two factors influence the
attainment of sustainable development (i) industrialization and (ii) excessive population. India is
not an industrialized country. Hence the major cause for achieving sustainable development
could not be industrialization. On the other hand, India is facing the burning problem of arresting
the burgeoning population. The population factor is the major factor that restricts the sustainable
development of India. Tremendous pressure is placed upon the country’s land and natural
resources to support the massive over population.

Though there is a national consensus that the tremendous increase in the population of the
country must be restricted, there is no specific law in India which directly regulates the growth in
population.

The concept of sustainable development, though does not find express mention in environmental
statutes of India, but it can be read in various provisions of the Environment (Protection) Act;
Water (Prevention and Control of Pollution) Act; Air (Prevention and Control of Pollution Act)
and other environment related laws. The Indian judiciary, particularly the Supreme Court of
India in various judgments has accepted the principle of sustainable development as part of the
law of the land. However in all mentioned judgments Indian judiciary has applied ‘ sustainable
development ’ as a balancing concept between ecology and development i.e. industrial
development.

Though the population issues do recognize that the country ’ s efforts to conserve the resource
endowment and environment are being neutralized by increase in population, the Indian
environmental concerns could not recognize that population factor is the major factor that
restricts the sustainable development of India. The population issue is probably the most
uncomfortable and divisive of all environmental concerns. Hence, if the issue of population is
ignored, it will eventually render all efforts for sustainable development fruitless, which may
result in disastrous consequences. The environment law (statutory, as well as case law), as it is
developing in India, could not link the problem of attaining sustainable development with the
burgeoning population of the country. How and in what manner law could enforce the principle
of sustainable population for sustainable development may be a matter of further study and
research. However one thing is clear, that the massive population of the country has a bearing on
various directive principles of state policy, particularly articles 38 and 39, 41, 42 of Constitution
of India. Since it is the constitutional obligation of state to secure the well being and progress of
the people, the responsibility of the state to maintain population levels most conducive to
national welfare is unquestionable, hence unavoidable. The nation is looking forward to the pro-
active Indian judiciary to help state secure constitutional guarantee of socio-economic justice to
the people of India by evoking the principles of sustainable population.
 UNIT-II
2. The Constitution of India is the source of Indian environmental jurisprudence, and the
Supreme Court of India has played a proactive role in constitutionalising fundamental
environmental principles. Identify the constitutional provisions and those principles with
the help of decided cases.
ANSWER

Laws related to the environmental protection reflect a country’s stronghold against

environmental degradation and exploitation. India being a developing country has shown an
immense dedication towards environmental protection in the latter half of the 20th century which
was mostly influenced by United Nations Conference on Human environment and World summit
on Sustainable Development. The recent trend in countries around the world has led to the
inclusion of right to environment as an essential feature of the basic guarantees by the state.
Though In India, the provisions regarding environmental protection have got its place in the
Directive Principles but the active role of Judiciary in recent years have included it under
Fundamental rights guaranteed by the Constitution of India thus including it under Article 21 of
the Constitution of India.
We will deal with the Constitutional Jurisprudence towards Environmental Protection in India or
Constitution of India as the source of Indian environmental jurisprudence And we will elaborate
the Constitutional Mandate on Environmental Protection in India. And lastly the role of Judiciary
in making environmental Protection in India a fundamental right Guaranteed by the state.

Environment means the sum of all living and non-living things that surround an organism. It
includes biotic as well as abiotic factors. There has been a concept of environment and its
protection in India since the ancient times. Our ancient texts like manusmriti and Vedas have
given utmost importance to our natural environment. Trees and other factors of environment
were worshiped as sacred things, and the violations of environmental protection were penalized.
With the advent of time, the world today has become a global village. There have been various
technological inventions all around the world. However all these developments are taking place
at the cost of environment, hence giving rise to some serious environmental problems. Since the
last three-four decades, efforts have been put in to protect the environment all around the world
and during these years India has emerged as the pioneer in the developments regarding
environmental protection. Most of the principles under which environmental law works in India
come within this period.
The makers of the Indian Constitution were also aware of the needs, hence they provided with
various provisions regarding environmental protection. The development in this area has
primarily been initiated by the judicial and legislative systems of India, especially the higher
judiciary. Over the last two decades, the Indian judiciary has played a proactive role in
environmental protection by dealing with complex and important matters of environmental
management. Solving them and consequently providing effective legal remedies, it can be found
that Indian Scenario is replete with examples of preserving the environment from degradation.
The zeal and enthusiasm shown by the various pillars of constitution has resulted in mass
awareness, thus resulting in an important step towards saving our mother earth. Amidst some
serious endeavors, significant developments took place in the Indian scenario.

Background
Efforts are being made all over the world to tackle the environmental problems, and two specific
events have been very influential in affecting any environmental legislation, first, United Nations
Conference on Human Environment and second, world summit on sustainable development.
Both these events amongst many other important events have created a benchmark in the history
of environmental protection.

Impact In India
The environment assumed a central role in India, to a large extent, as a result of first major
international conference on environment namely the United Nations conference on the human
environment (UNCHE) held in Stockholm in 1972.In preparation for meeting, each member state
was asked to prepare a report on the state of environment. India setup a committee on the human
environment under the chairmanship of Pitambar Pant, a planning commission member. The
outcome was three reports, one on the state of environment, one on the problems of human
settlement and one on the possible strategies to manage resources. Environmental goals were
subsequently incorporated in 5th five year plan onwards. Legislations such as Wildlife Protection
Act 1972 and the Water (Prevention and Control of Pollution) Act, 1974 were passed soon after
as well.

It was realized by India that unless a nationalized institution for the coordination and control of
Environmental policies is established, there would remain a situation of lacuna. National Council
for Environmental Policy and Planning was set up in 1972, which was later evolved into
Ministry of Environment and Forests (MoEF) in 1985. MoEF and the pollution control boards
(CPCB i.e. Central Pollution Control Board and SPCBs i.e. State Pollution Control Boards)
together form the regulatory and administrative core of the sector. The Policy Statement for
Abatement of Pollution and the National Conservation Strategy and Policy Statement on
Environment and Development were brought out by the MoEF in 1992.

Legislations for Environmental Protection

As part of its campaign on green environment, Indian Parliament has enacted nationwide
comprehensive laws. After the Stockholm conference on Human Environment on June, 1972, it
was considered appropriate to have uniform law all over country for broad Environment
problems endangering the health and safety of our people as well as of our flora and fauna. The
Water (Prevention & Control of Pollution) Act, 1974 is the first enactment by the Parliament in
this direction. This is also the first specific and comprehensive legislation institutionalizing
simultaneously the regulatory agencies for controlling water pollution. The Pollution Control
Board at the Centre and in the State came into being in terms of this Act.6

In 1976, the Constitution of India was amended to insert a separate fundamental duties chapter.
The Air (Prevention and Control of Pollution) Act of 1981 was enacted by invoking the Central
Government’s power under Art 253. The Air Act contained several distinguishing features. Also,
a notification relating to Noise Pollution (Regulation & Control) Rules was made in the year
2000 with the objective of maintaining Ambient Air Quality Standards in respect of noise.

In the wake of the Bhopal gas tragedy, the Government of India enacted the Environment
(Protection) Act, 1986. Against the backdrop of the United Nations Conference on the Human
Environment held at Stockholm in June 1972, in which India was a participant, the Central
Government enacted legislation, The Environment (Protection) Act, 1986, with an objective for
protection and improvement of the environment and for matters connected therewith. As per this
Act, the Central Government shall have the power to take all such measures for the purpose of
protecting and improving the quality of the environment and to prevent environmental pollution.
Further, the Central Government shall have the power to give directions in writing to any person
or officer or any authority for any of the purposes of the Act, including the power to direct the
closure, prohibition or regulation of any industry, operation or process.

Apart from this, several notifications and rules have also been made, some of which include the
Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes
(Management and Handling) Rules in 1998, Recycled Plastics (Manufacture and Usage) Rules
1999, Environment (Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes
(Management and Handling) Rules in 2000.In addition to these eco-specific legislations,
realising that there is no comprehensive legislation dealing with biodiversity in India, and to
fulfil its international obligation under the Convention on Bio-Diversity, the Government of
India has enacted the Biological Diversity Act, 2002.

Constitutional Mandate on Environmental Protection

The Constitution of India originally adopted, did not contain any direct and specific provision
regarding the protection of natural environment. That is probably why it did not even contain the
expression ‘Environment’. It can be inferred from Article 39(b), Article 47, Article 48 and
Article 49 of the Constitution of India. These directive principles individually and collectively
impose a duty on the State to create conditions to improve the general health level in the country
and to protect and improve the natural environment.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed that the State will
realise that Article 47 makes it a paramount principle of governance that are steps taken for the
improvement of public health as amongst its primary duties.

Forty-Second Constitutional Amendment

Considering the influence and success of Stockholm Conference and the growing demand and
consciousness, the Indian Constitution was amended in the year 1976. This gave it a boost to
environmental protection crisis and added to it direct provisions for the preservation of
ecological and biological diversity. The 42nd Amendment Act 1976 inserted Article 48A in Part
IV of the Constitution of India which directly imposes a duty on the State by providing that the
State shall endeavour to protect and improve the environment and to safeguard the forest and
wildlife of the Country.
This Amendment Act also inserted Article 51A which imposes 10 duties on the citizens of India.
Clause (g) of Article 51A imposes a duty on the citizens to protect the environment. This clause
provides that it shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have compassion for living
creatures.

Role of Judiciary
The judiciary, to fulfill its constitutional obligations was and is always prepared to issue
appropriate orders, directions and writs against those persons who cause environmental pollution
and ecological imbalance. This is evident from a plethora of cases decided by starting from the
Ratlam Municipality Case. The Supreme Court, in Rural Litigation and Entitlement Kendra
v. State of U.P. ordered the closure of certain limestone quarries causing large scale pollution
and adversely affecting the safety and health of the people living in the area. Likewise, in M.C.
Mehta v. Union of India, the Court directed an industry manufacturing hazardous and lethal
chemicals and gases posing danger to health and life of workmen and people living in its
neighbourhood, to take all necessary safety measures before reopening the plant. Holding that
the Government has no power to sanction lease of the land vested in the Municipality for being
used as open space for public use, the Supreme Court in Virender Gaur v. State of Haryana,
the Court explicitly held that:

The word environment is of broad spectrum which brings within its ambit hygienic atmosphere
and ecological balance. It is therefore, not only the duty of the State but also duty of every citizen
to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance
and hygienic environment.

Hence, judicial activism in India provides an impetus to the campaign against pollution.

Right to Environment: A Fundamental Right

One of the earliest formulations of the right appeared in the concluding document of the UN
Conference on the Human Environment, held in Stockholm in 1972. Principle 1 of the
Stockholm Declaration stated that:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and future generations.15

The Indian Supreme Court developed a very prominent concept of right to healthy environment
as a part of Article 21 of the Indian Constitution and thus, acknowledging the importance of
international Judicial activism. Supreme Court under Article 32 and high Courts under Article
226 gave birth to an apex environmental jurisprudence in the form of fundamental right to
healthy environmentes, thereby giving birth to an incomparable environmental jurisprudence in
the form of the constitutional right to healthy environment.

The decision given by the Supreme Court in Sachidanand Pandey v. State of West Bengal,
seemed to be narrowing the level of scrutiny as opposed to enlarging it to include the all
pervasive environmental dimension. For the first time in the case of Subash Kumar v. State of
Bihar, the Court declared that the right to life under Article 21 includes the right to clean water
and air. In the same case, the rule of locus standi was enlarged so that the Court could take
cognizance of environmental degradation and regulate the prevention of the same in an effective
manner.

A foundation for the application of the Precautionary Principle, the Polluter Pays Principle
and Sustainable Development, having been laid down, the three principles were applied
together for the first time in by the Supreme Court in Vellore Citizens Welfare Forum v. Union
of India, a case concerning pollution being cause due to the discharge of untreated effluents
from tanneries in the state of Tamil Nadu. The Court, referring to the precautionary principle,
polluter pays principle and the new concept of onus of proof, supported with the
constitutional provisions of Articles 21, 47, 48A and 51A (g) and declared that these
doctrines have become part of the environmental law of the country.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that certain common
properties such as rivers, forests, seashores and the air were held by Government in Trusteeship
for the free and unimpeded use of the general public. Granting lease to a motel located at the
bank of the River Beas would interfere with the natural flow of the water and that the State
Government had breached the public trust doctrine.

In the very recent case of T.N. Godavarman Thirumulpad v. Union of India, a case
concerning conservation of forests, Justice Y.K. Sabharwal, held: ...Considering the
compulsions of the States and the depletion of forest, legislative measures have shifted the
responsibility from States to the Centre. Moreover any threat to the ecology can lead to violation
of the right of enjoyment of healthy life guaranteed under Article 21, which is required to be
protected. The Constitution enjoins upon this Court a duty to protect the environment.

Efforts filled with vim, wit and vigor provided justice to a very important factor of human life
which was untouched for a very long time. The Indian environmental scenario has undergone a
positive change due to the environmental consciousness of the Indian Constitution. Judiciary, the
help of legislature has introduced the right to environment as a fundamental right.

The initiative taken by the judiciary has introduced transparency on the issue of clearance of
projects and environmental impact assessment. The constitution has struck the balance between
environment and it’s development by initiating the various principles such as Polluters Pay
Principle (PPP) in Indian Environmental Jurisprudence thereby linking right to clean and
unpolluted environment with right to live under Article 21.
1990 judicial trend gives a much better scenario of the Indian development model and
environment related issues for the coming generations. The Indian Constitution provides various
methods to protect the environment not only for the people but also from the people. There is no
question that India is still developing and it needs to tackle the problems of development but the
awareness for the protection of environment at the same time has been the key point of efforts
made by India.
The awareness spread by the Indian judiciary has been the key factor and wherever needed, the
judiciary along with the help of legislature has taken unusual and sometimes drastic measures to
protect the environment. For example in reminding the judiciary has sometimes intervened in the
very basic affairs of the other organs of Indian Constitution. But at the same time the steps taken
by the Indian constitution remain remarkable as far as the environmental laws are concerned.
 UNIT-III
3. The Environmental Protection Act, 1986 (EPA) is an also known as the ‘Umbrella
Legislation’ since it lays down the essential framework for Central Government to
coordinate activities of the Central and State authorities established under different
environmental laws. In the light of the above statement critically examine the salient
features of the EPA with special reference to Section 3 and 5 of the Act?
ANSWER
The water and air Acts were passed immediately after the Stockholm Conference but no
comprehensive legislation covering all aspects of preservation of environment was enacted. This
was done only in 1986 by passing in the Environment (Protection) Act, 1986 (EPA).

Purpose of the EPA

The purpose of the EPA was to implement decisions of the Stockholm Conference in so far
they relate to the protection and improvement of the human environment and the
prevention of hazards to human beings, other living creatures, plants and property.

The main objectives of the Act are:

 to implement the decisions made at the Stockholm Conference

 to enact general law on environmental protection which could fulfil gaps in the areas
of major environmental hazards as the existing laws generally focused on specific
kinds of pollution or on specific categories of hazardous substances and some major
areas of environmental hazards were not covered;
 to co-ordinate activities of the various regulatory agencies under the existing laws and
creation of an authority or authorities for environment protection; and
 to provide for deterrent punishment to those who endanger human environment,
safety and health.
The EPA is thus an umbrella legislation to provide a framework for the central government to
coordinate the activities of various central and state authorities established under previous laws,
such as Water Act and Air Act. It is also an enabling law, which articulates the essential
legislative policy of environment protection and change in emphasis from narrow concept of
pollution control to the wider aspect of environment protection. The exhaustive definition of
environment which includes water, air and land and the interrelation which exist among and
between water, air and land, other human creatures, plants, micro-organisms and property gave a
very good impression. However, deeper scrutiny discloses that the legislation has several missing
links. Only a wide net is drawn over the pollution laws not covered by other laws. All that the
Act has done is to arm the central government for comprehensive control of environment
pollution by industrial and related activities of man.

Section 24 of EPA makes the penal provision redundant by limiting the scope and propose of the
Act. This section postulates that where an offence under this Act is also an offence under any
other Act, the offender is to be punished only under the other Act. The Factories Act, the
Wildlife Act, the Forest Act, the Insecticides Act and host of other legislations coyering almost
every aspect of environment are available and thus where an offender under the EPA is also an
offender under any of such Act(s) shall be punished only under such Act and thereby rendering
the EPA to be meaningless. Though the Water Act and the Air Act do not give common man the
locus standi to initiate action but section 19 of the Environment Protection Act gives a right to
move the court though it requires that notice of not less than 60 days be given to the offender of
alleged offence and intention to prosecute. The provision defeats the purpose through prior
intimation.

The Act has a shortcoming in leaving out what the United Nations calls Environment
Assessment Statement. This shortcoming was sought to be removed through delegated
legislation by making mandatory public hearing for environmental clearance of certain
projects(This list includes major projects like nuclear power projects, river valley projects,
mining projects, thermal power plants etc. The list includes 29 categories). However,
subsequently the ministry decided that such participation could be dispensed with if public
interest so demands. Accordingly, the interest of public has been made to suffer in the name of
public interest itself.

By far, the Supreme Court has viewed that the purpose of the EPA was only to create authority
u/s 3(3) with adequate powers to control and protect the pollution (Vellora Citizens Welfare
Forum). In general, the courts have also interpreted other provisions too together with
subordinate legislation made thereunder to enforce abatement of pollution( S. Jagannatha v.
Union of India and others,(1997) 2 SCC 87). The law of environment is thus in a stage of
evolution in India.

Section 3 and 5
 S.3. Power of Central Government to take measures to protect and improve
environment.
(1)Subject to the provisions of this Act, the Central Government shall have the power to take all
such measures as it deems necessary or expedient for the purpose of protecting and improving
the quality of the environment and preventing, controlling and abating environmental pollution.
(2)In particular, and without prejudice to the generality of the provisions of sub-section (1), such
measures may include measures with respect to all or any of the following matters, namely:
(i) co-ordination of actions by the State Governments, officers and other authorities
(a) under this Act, or the rules made thereunder; or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(i) planning and execution of a nation-wide programme for the prevention, control and abatement
of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various
sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause
from different sources having regard to the quality or composition of the emission or discharge
of environmental pollutants from such sources;
(v)restriction of areas in which any industries, operations or processes or class of industries,
operations or processes shall not be carried out or shall be carried out subject to certain
safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and remedial measures for such accidents;
(vii) Laying down procedures and safeguards for the handling of hazardous substances;
(viii) Examination of such manufacturing processes, materials and substances as are likely to
cause environmental pollution;
(ix) Carrying out and sponsoring investigations and research relating to problems of
environmental pollution;
(x)inspection of any premises, plant, equipment, machinery, manufacturing or other processes,
materials or substances and giving, by order, of such directions to such authorities, officers or
persons as it may consider necessary to take steps for the prevention, control and abatement of
environmental pollution;
(xi) Establishment or recognition of environmental laboratories and institutes to carry out the
functions entrusted to such environmental laboratories and institutes under this Act;
(xii) Collection and dissemination of information in respect of matters relating to environmental
pollution;
(xiii)preparation of manuals, codes or guides relating to the prevention, control and abatement of
environmental pollution;
(xiv)such other matters as the Central Government deems necessary or expedient for the purpose
of securing the effective implementation of the provisions of this Act.
(3)The Central Government may, if it considers it necessary or expedient so to do for the
purposes of this Act, by order, published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified in the order for the purpose of exercising
and performing such of the powers and functions (including the power to issue directions under
section 5) of the Central Government under this Act and for taking measures with respect to such
of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the
supervision and control of the Central Government and the provisions of such order, such
authority or authorities may exercise the powers or perform the functions or take the measures so
mentioned in the order as if such authority or authorities had been empowered by this Act to
exercise those powers or perform those functions or take such measures.
Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd., AIR 2001 SC 184.
The court should approach that no activities which would ultimately lead to unscientific and
unsustainable development and ecological destruction at all be allowed and the courts must
scrupulously try to protect the ecology and environment.
M.C. Mehta v. Union of India, AIR 2002 SC 1696
To protect the health of the present and future generation and protect and improve the
environment, the non-CNG-buses were phased out and ordered for the use of CNG-buses.
Environmental awareness
M.C. Mehta v. Union of India, AIR 1992 SC 382
A public interest petition was filed seeking directions from the apex court to the Government for
exhibition of slides in cinema halls containing information and messages on environment free of
cost, spread of relative valuable information relating to environment in national and regional
languages through television and Radio in regular and short-term programmes and for making
environment as compulsory subject in schools and colleges. The Supreme Court accepted the
prayers in principle and issued directions to that effect holding that keeping the citizens informed
is an obligation of the Government.
M.C. Mehta v. Union of India, AIR 1988 SC 1037
The Central Government is empowered to take all such measures as it deems necessary or
expedient for the purpose of protecting and improving the quality of the environment and
preventing, controlling and abating environmental pollution.

Indian Council for Enviro-Legal Action, etc. v. Union of India, AIR 1996 SC 1446
The responsibility for repairing the damage is of the offending industry. The task of determining
the amount required for carrying out the remedial measures, its recovery/realisation and the task
of undertaking the remedial measures is placed upon the Central Government.

Anand Arya v. Union of India, (2011) 1 SCC 744

Environment is one of the facts of the right to life guaranteed under article 21 of the Constitution.
Environment is not merely a statutory issue, it is a matter directly under the Constitution. If the
court perceives any project or activity as harmful or injurious to the environment it would feel
obliged to step in.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

The main purpose of the Act is to create an authority or authorities with adequate powers to
control pollution and protect the environment.
N.D. Jayal v. Union of India, AIR 2004 SC 867
To ensure sustainable development is one of the goals of Environmental Protection Act, 1986,
and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed
with the powers to ensure sustainable development, it will become a barren shell. In other words,
sustainable development is one of the means to achieve the object and purpose of the Act as well
as the protection of 'life' under Article 21.
Justice R.S. Verma v. State of Rajasthan, AIR 2004 Raj 175
It is necessary that green areas and the parks in all the towns and cities of Rajasthan are
maintained to protect environment and ecology, but it is seen they are allowed to be encroached
upon due to commercial and other pressures. They are converted from green areas to commercial
areas and residential areas. Concrete jungles are swallowing green areas. That trend needs to be
halted to protect and preserve ecology.
Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd., AIR 2001 SC 184.
The harmonisation of the two namely, the issue of ecology and developmental project cannot but
be termed to be the order of the day and the need of the hour.
Noise Pollution (in re:), AIR 2005 SC 3136.
There is need for creating general awareness towards the hazardous effects of noise pollution.
Similar awareness need to be created in Police and Civil administration as well. Not only the use
of loudspeakers and playing of hi-fi amplifier systems has to be regulated, even the playing of
high sound instruments which create noise beyond tolerable limit need to be regulated.
 S.5. Power to give directions
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the
Central Government may, in the exercise of its powers and performance of its functions under
this Act, issue directions in writing to any person, officer or any authority and such person,
officer or authority shall be bound to comply with such directions.
Explanation.For the avoidance of doubts, it is hereby declared that the power to issue directions
under this section includes the power to direct

(a)the closure, prohibition or regulation of any industry, operation or process; or

(b)stoppage or regulation of the supply of electricity or water or any other service.

A.P. Pollution Control Board v. Prof. M.V. Nayudu, (2001) 2 SCC 62

Where total prohibition against establishment of industries in an area is in force, the State
Government cannot grant exemption to a specified industry located within or attempting to
locate itself within such area. Neither can the State direct the State Pollution Control Board to
prescribe conditions for grant of No Objection Certificate.

Goa Foundation v. State of Goa, AIR 2001 Bom 318

The grant of lease of land belonging to forest area to be used for setting up beneficiation plant
which involve dust and water pollution and consequent destruction of adjoining forest and
subsequently affecting the environment and ecology of the area and right to life, was declared
void
Bihar State Pollution Control Board v. Hiranand Stone Works, AIR 2005 Pat 62
If the Central Government has issued certain directions and notified certain industries as
hazardous and stone crushers have not been included then the Board would not be forbidden
from exercising its power under provisions of Air Act or Water Act;

The Environment Protection Act 1986

Is a small Act consisting of 26 sections divided into four Chapters:
Chapter I
which consists of two sections, is a preliminary chapter and defines the jurisdiction of the Act
extending to the whole of India, and the second section gives the statutory definitions of various
terms, such as “environment”, “environmental pollutant”, “environmental
pollution”,“handling”,“hazardous substance” and “occupier”, etc.
The word environment has been given a wide definition to include air, water and land and the
inter relationship which exists between them which subsequently affects the life of not only
human beings, but also other living creatures, plants, micro-organisms and even property.

Chapter II
consists of four sections and gives extensive power to the Central Government for prevention,
control and abatement of environmental pollution.
Section 3 (2)(vi) empowers the Government to make rules prescribing procedure and
safeguards for the prevention of accidents which may cause environmental pollution and to
take remedial measures for such accidents.

Chapter III
consists of 11 sections (sections 7 to 17). The Chapter deals exhaustively with the provisions
relating to pollution, control and abatement of environmental pollution.
Section 7 fixes statutory liability on industrial undertakings prohibiting discharge or emission of
any environmental pollutant in excess of such standard as may be prescribed in the atmosphere.
Failure to do so is punishable under section 15 of the Act to the extent of imprisonment which
may extend to five years and a fine or both. Section 8 prohibits the handling of hazardous
substances except in accordance with such procedure and after complying with such safeguards
as may be prescribed. Section 10 authorises the Central Government to have any place inspected
by any of its officers at all reasonable times for the purposes of performing any duty and
functions entrusted under the Act.

A person carrying on any industry, operation or process or handling hazardous substances under
section 10 (2) of Environment Protection Act 1986, shall be bound to render all assistance to the
person empowered by the Central Government for carrying out the functions entrusted under the
Act, and if such a person fails to do so without any reasonable excuse or cause, shall be liable to
punishment. The section further provides for making search of places and seizure of the
premises, if necessary.
The Act empowers the Central Government to establish environmental laboratories, etc for
smooth implementation of the provisions of the Act.
Section 16 fixes liability individually and section 17 on every person directly in charge of and
responsible for the conduct of the business of the company.

Section 17 punishes each failure of compliance or contravention under the Act with a term of
imprisonment which may extend to five years or with fine up to one lakh rupees or both. For
each act of failure to comply or contravention, happening after the conviction for such failure or
contravention, an additional fine of Rs 5000 per day is prescribed. Additionally, if such failure or
contravention continues beyond a period of one year after conviction, the offender is liable to
imprisonment for a term which may extend to seven years.

The punishments are clearly intended to be harsh. More so, since there is scope to construe
section 15 as imposing strict liability, as mens rea requirements of knowledge and intent are not
prescribed.

Role and Working of the Environment (Protection) Act 1986

The Environment (Protection) Act, 1986 was enacted to implement the decisions taken at the
Stockholm Conference in 1972. It provided for a framework primarily designed to deal with the
control of toxic and hazardous substances, and the protection and improvement of the
environment along with the people and living creatures from the kinds of pollution, similar to the
Water and Air Acts. It provides a very broad definition of “environment” under section 2(b) and
includes water, air and land and the inter-relationships which exist among water, air and land and
human beings, other living creatures, plants, microorganisms and property.

Sections 3–8 of the Environment (Protection) Act, 1986 empower the Centre to enforce policies
with respect to standards and new guidelines for those substances not mentioned in the Water
and Air Acts; introduce and regulate framework and specific guidelines and notifications for
hazardous substances, safeguards for the use, handling, storage, transport and discharge of
hazardous substances.
Sections 15 and 16 provide for penal sanctions, such as imprisonment for up to five years and
fines up to Rs 1 lakh, for continuing offences and violation of the provisions. Moreover, the
Environment (Protection) Act, 1986 reverses the burden of proof upon a person who is running a
polluting enterprise to prove that the violation or the offence was committed without his
knowledge or that he exercised due diligence to prevent the commission of the offence. Further,
the penal provisions further extend the liability for persons who are officers, secretaries, directors
or managers of the company who may have connived, consented to the violation, or been
negligent in performing their statutory duties. As an umbrella legislation, the Environment
(Protection) Act, 1986 imposed an obligation on the government to make policies and strategies
for environmental protection, taking care that the administrative agencies set up were
empowered to enforce and implement the regulations. It was also expected that the policies put
forward by the government for furthering regulatory objectives include social ones.
The Role of the Environment (Protection) Act: Regulation and Licensing
However, the Environment (Protection) Act, 1986 did not reflect these social objectives nor did
it take into account the historic or future effects of pollution. It lacked a clear policy and the
broad objective stated in the Act was merely stated on paper and did not provide for a framework
for the administrative machinery to achieve these objectives. It filtered out the penal provisions
as it provided that where any act or commission constituted an offence punishable under the
Environment (Protection) Act, 1986 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 the Environment
(Protection) Act, 1986(Section 24).

The criticism leveled against the Environment (Protection) Act, 1986 reveals the nature, ideology
and inadequacy in the environment regulatory system. However it is submitted that one of the
positive aspect of the regulatory system has been to provide an impetus for the development of
environmental jurisprudence, to create means for public participation and access to justice to
people by providing a right to “any person” to prosecute a polluter under Article 19 and doing
away with the legal requirements of “standing in the court”. It has also brought forth reasons to
deliberate on and elaborate clear policy objectives and functions as an “enviro-meter” indicative
of pollution and damage to the environment and people at all levels. However the Environment
(Protection) Act, 1986 and the subsequent amendments to the Water and Air Acts have provided
an impetus for awareness, and through public law control, attempt to add a certain direction to
emphasize a public law rationale.
 UNIT-IV
4. Critically examine the forest policy of India with reference to the statutory enactments
made in pursuit of the policy. Also discuss the role of judiciary in the preservation of
forests.
ANSWER

Objective of the National Forest Policy 1988

aims at developing a new strategy of forest conservation through afforestation, social forestry,
farm forestry, better management of state forests, wild life conservation, preventing
encroachments on forest-land, restrictions on diversion of forest-lands for non forest purposes,
restrictions on forest-based industries, increased forestry research and education activities and
the grant of rights and concessions based on the carrying capacity of the forest(T N
Godavarman Thirumulkpad v Union of India AIR 1997 SC 1228 [LNINDORD 1996 SC
21]).
The National Forest Policy 1988 has as its goal to bring a minimum of one-third of the total land
area of the country under forest or tree cover. In the hills and mountainous regions, the aim is to
have two-thirds of land under forest or tree cover
State of Himachal Pradesh v. Ganesh Wood Products
In this case, permission was granted by the Himachal Pradesh government for the setting up of
Katha factories which was derived from Khair trees and which was used in pan masala products.
Manufacturers from several states thieves shifted bases to the State of Himachal Pradesh after
manufacture of Katha was prohibited elsewhere. It had been contended before the Court by that
there was a shortage in quantity of Khair trees and hence permission for setting up new factories
should not be granted.
The Supreme Court directed the Government to conduct a fresh survey of the availability of trees
since the government figures were based upon a survey carried out in 1992. In answering the
question of availability of resources, the Court made the following observations.
It observed:
“It is also violative of the National Forest Policy and the State Forest policy evolved by the
Government of India and the Himachal Pradesh Government respectively - besides the fact that it
is contrary to public interest involved in preserving forest wealth, maintenance of environment
and ecology and considerations of sustainable growth and inter-generational equity. After all, the
present generation has no right to deplete all the existing forests and leave nothing for the next
and future generations.”

The provisions relating to environment in Indian Penal Code, Civil Procedure Code, Law
of Torts and Criminal Procedure Code are concerned with the punitive aspects of
environment pollution. So it was very much felt to pass to have a general and comprehensive
legislation for environmental protection because the problem of environmental degradation is a
social problem.
As such, an attempt has been made to study the environmental policy of India right from the free
independence period to the present era.
The environmental policy in pre-independence era can be studied under three periods
which are as follows:

 Environmental Policy in ancient India.

 Environmental Policy in medieval India.
 Environmental Policy during British period.
Environmental Policy in Ancient India
The Vedas, Puranas, Upanishads and other scriptures of Hindu religion give a detailed
description of trees, plants and wildlife and their importance to the community. The Rigveda
highlights the potentialities of nature in controlling the climate, increasing fertility and
improvement of human life emphasizing for intimate kinship with nature. Atharva Veda
considers trees abode of various Gods and Goddesses. Yajurveda emphasizes that relationship
with nature and animals should not be that of dominion and subjugation but of mutual respect
and kindness.
Even in Yajnavalkya, it is said that the wicked person who kills animals has to live in Ghor
Narak (hell-fire) for the days equal to the number of hair on the body of that animal. Thus, one
can infer that environmental protection has been an important facet of Hindu way of life.

The Mauryan period which was considered to be as glorious chapter of Indian history assumed
the functions of maintenance of forest, regulation of forest produce and protection of wild life. It
was in this period, the process of administration was put into action with the appointment of
Superintendent of Forest and the classification of forest on a functional basis. Arthashastra also
prescribed punishment for causing pollution and uncivic sanitation. It is clear that ancient India
realized that abuse and exploitation of nature for immediate gains was unjust, irreligious and
against Dharma.

Environmental Policy in Medieval India

The Indian peninsula suffered substantial ecological loss due to destruction of forests resulting
from political in stability that prevailed in the country for over nine centuries that elapsed
between the fall of Gupta dynasty in the latter years of the seventh century and the consolidation
of the Mughul empire by Akbar about the close of the sixteenth century.

During the Mughul period, there was no attempts on forest conservation as they did not realize
the importance of its conservation and were considered as properties which yielded some
revenue. But, it does not mean that Mughul emperors did not significantly contribute for
environment conservation. They established magnificent gardens fruit orchards and green parks,
round about their palaces, central and provincial headquarters, public places, on the banks of the
rivers and in the valley and dales which they used as holiday resorts or places of retreat or
temporary headquarters during the summer season. The famous Mughul gardens which dot every
nook and corner of the country even today are thus a pleasant cultural heritage of the Imperial
Mughals. Additionally, the religious policy of Akbar based on principles of complete tolerance
also reflects concern for protection for birds and beasts in so much so as endeavours were taken
during his reign to stop their unnecessary killing. The religious policy of Akbar was pursued in
principle though sometimes differing in details, by Jahangir and Shah Jahan.

Environmental Policy during British period

An organized forest management in British India was began only in the second half of the 19th
century with a view to take administrative steps to conserve forest by formulating the forest
policy. The systematic management of forest resources began with the appointment of first
Inspector General of Forests in 1864.
So, during 19th century attempts were made to regulate not only forestry but also water pollution
wildlife and land by enacting laws.

Some of the legislations during the British rule are as follows:

 The Shore Nuisance (Bombay and Kolaba) Act, 1853.
 Oriental Gas Company Act, 1857.
 The Forests Act, 1865.
 Indian Fisheries Act , 1897.
 Bengal Smoke Nuisance Act, 1905.
 Bombay Smoke Nuisance Act, 1912.
 Boilers Act , 1923.
 Forests Act , 1927.
 The Elephant Preservation Act, 1879.
 The Forest Act, 1878.
 Wild Birds and Animals Protection Act, 1912.
 The Indian Penal Code, 1860.
 The Code of Criminal Procedure, 1898.
 Code of Criminal Procedure , 1973.
 The Forests Act, 1927.
 The Fisheries Act, 1897.

Post Independence
As industrialization started growing rapidly with a view to achieve the economic development to
become self-defendant, the national environment has been affected adversely. But, we could not
conclude that we didn’t have concern to environment protection. Because after independence,
we have passed so many laws to protect our environment which are as follows:

 Factories Act , 1948.

 Industries (Development and Regulation) Act , 1951.
 The Mines Act, 1952.
 The Insecticides Act, 1968.
  Code of Civil Procedure , 1908.
 Wildlife (Protection) Act , 1972.
 The Water (Prevention and Control of Pollution) Act, 1974.
 The Forest (Conservation) Act, 1980.
 The Air (Prevention and Control of Pollution) Act, 1981.
 Environment (Protection) Act , 1986.
 The Public Liability Insurance Act, 1991.
 The National Environment Tribunal Act, 1995.
 The National Environment Appellate Authority Act, 1997.
 The Biological Diversity Act, 2002
Apart from the above legislations, the country adopted various policies such as
 National Festival of Planting Trees in 1950,
 the National Forest Policy in 1952,
 the Scheme of “Project Tiger”,
 The National Forest Policy, 1988,
 the Project Elephant 1991-92 etc.,
Are the few provisions which shows the attitude of the Government with respect to
environmental protection.

From the above, if we examine the national planning process and the forest policy, it is clear that
even before signatory to the Stockholm declaration, the Indian Government became conscious of
dangers of environmental pollution as early as in 1969. Even in First Five Year Plan (1951-56),
the Government emphasized on rehabilitation of forest areas and also the means of
communication forest were also improved during this plan. Simultaneously, in the further
planning process also, concern was shown in the environmental aspects by establishing a link
and balance between the planning and environmental management.

Legislations relating to Environmental Protection

After 1970, only some specific legislation dealing exclusively with environmental pollution
problem have been passed. They are discussed as follows:
  Water (Prevention and Control of Pollution) Act , 1974
The main objectives of the Water Act are to provide for:
 Prevention, control and abatement of water pollution.
 To maintain or restore wholesomeness of water.
 To establish pollution control board and
 To confer on pollution control boards powers and functions relating to prevention and
control of water pollution.
Thus, the Act has been formulated to prevent the pollution of water the industrial, agricultural
and household waste water that can contaminate our water sources. The Government has given
the necessary power to pollution control boards to deal with the problems of water pollution in
the country. Apart from this, Central and State Water-Testing Laboratories have been set up to
enable the boards to assess the extent of water pollution.

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

The main objectives of the Act are as follows:
 To provide for the prevention, control and abatement of air pollution.
 To provide for the establishment of central and state pollution control boards the powers
to implement the provisions of the Act, and assign necessary functions to the board to
control pollution.
The State Governments have been given powers to declare air pollution control areas after
consulting with the state board with a view to give instruction to ensure standards of emission
from automobiles and restriction on use of certain industrial plants.

 The Environment (Protection) Act, 1986

As the existing laws focused on very specific types of pollution or specific categories of
hazardous substances, or were indirectly relating to the environment through laws that control
land use, protect our nature parks and sanctuaries and our wildlife, certain areas of environmental
hazards were not covered. To cover the uncovered areas of environmental hazards, a
comprehensive legislation was passed with a view to implement the decisions of the Stockholm
Conference for a wider purpose of protecting and improving human environment. The object of
the Act is very clearly stated in the preamble which are as follows:
  To implement decisions taken at the United Nations Conference on the human
environment held at Stockholm in June 1972.
 To take appropriate steps for the protection and improvement of human environment; and
 To prevent hazards to human beings, other living creatures, plants and property.
The rule making powers under the Environment Protection Act are quite exhaustive enough to
make rules in respect of all or any of the matters referred to in Section 3 of the Act which may
include specific matters such as, ‘maximum allowable limits of concentration of various
environmentals pollutants’, safeguards for, prohibitions and restrictions on, ‘the handling of
hazardous substances’, prohibition or restriction on location of industries and safeguards for the
prevention of accidents. Standards for discharge or emission of environmental pollutants and
procedures and safeguards for handling hazardous substances are to be prescribed by Rules.

Where the discharge of any environmental pollutant in excess of prescribed standards occurs or
is apprehended to occur, then one should intimate the fact of such occurrence to such authorities
or agencies as may be prescribed by the rules.The manner of taking samples of air, water, soil
and other substances, the establishment and recognition of environmental laboratories and their
functions and the appointment and recognition of government analysis, are all governed by rules
framed by the Central Government. Rules have also to prescribe the authority or officer to whom
any reports, returns, statistics, accounts and other information shall be furnished16. The general
rule-making power is conferred on the Central Government for carrying out the provision of the
Environment Protection Act.

Apart from this, we have common law doctrines under the law of Torts, constitution provisions
touching the environmental perspectives. And also a statutory remedies such as Law of Crimes,
Civil Procedure Code, Criminal Procedure Code, which play a very important role in preventing
and controlling all kinds of pollution.

Judicial Activism in India/ the role of judiciary in the preservation of forests

Judiciary exists for the people and not vice versa. Hence, in India the judiciary is playing an
active role to protect the environment by interpreting the existing constitutional provisions viz.,
“The Right to Life” guaranteed in Article 21 which mean and include the right to live in a
healthy environment.
The formulation of certain new principles and pronouncement of new doctrines as part of the law
of this country for protection of environment is remarkable achievement of the Indian Judiciary.
These principles and doctrines are discussed as follows:
 Principle of Absolute Liability
The Supreme Court of India formulated the doctrine of absolute liability in M.C. Mehta v..
Union of India. In this case, the Supreme Court of India observed:-

Where an enterprise is engaged in a hazardous or inherently dangerous activity resulting for

example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate
all those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-a-vis the tortuous principle of strict liability. The Court has also
pointed out that the measure of compensation must be co-related to the magnitude and capacity
of the enterprise because such compensation must have deterrent effect.

In Indian Council for Enviro-Legal Action v. Union of India, the principle of absolute
liability was reiterated and has held that the rule laid down in Rylands v. Fletcher which is
subject to certain exceptions, is not suitable for Indian conditions and so not applicable. Thus, the
principle of absolute liability to an extent attained the status of statutory liability with a view to
suit the emerging new socio-economic conditions.

 Polluter Pays Principle

The organization of economic co-operation and development (OECD) recommended ‘Polluter
pays principle’ as an essentially economic efficiency measure to internalize environmental costs.
Principle of the Rio Declaration proclaims that “national authorities should endeavour to
promote the internalization of environmental costs and the use of economic instruments, taking
into account the approach that the polluter should, in principle, bear the cost of pollution with
due regard to the public interest and without distorting international trade and investment”.
The Polluter pays principle for the first time applied by the Supreme Court in Indian Council
for Enviro-legal Action v. Union of India. The Court held that the polluting industries are
“absolutely liable to compensate for the harm caused by them to the villagers in the affected
area, to the soil and to the under-ground water and hence, they are bound to take all necessary
measures to remove sludge and other pollutants lying in the affected areas”.

The Supreme Court has also declared that the polluter pays principle is an essential feature of
sustainable development in Vellore Citizen’s Welfare Forum v. Union of India. In this case,
the Court observed that the polluter pays principle means that the absolute liability for harm to
the environment extents not only to compensate the victims of pollution but also the cost of
restoring the environment is part of the process of “sustainable development” and as such, the
polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the
damaged ecology. The Court further declared that the polluter pays principle has been accepted
as part of the law of the land.
Thus, the Courts have applied this principle in many cases such as M.C. Mehta v. Kamal Nath,
Consumer Education & Research Society v. Union of India, Bittu Sehgal v. Union of India,
Nature Lovers Movement v. State of Kerala, M.C. Mehta v. Union of India.

 Precautionary Principle
Principle 15 of the Rio declaration proclaims that “in order to protect the environment the
precautionary approach shall be widely applied by States according to their capabilities. Where
there are threats of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost effective measures to prevent environmental degradation”.

The purpose of the “precautionary principle” is to ensure that a substance or activity posing a
threat to the environment is prevented from adversely affecting the environment, even if there is
no conclusive scientific proof of linking that particular substance or activity to environmental
damage. The words “substance” and “activity” imply substances and activities introduced as a
result of human intervention. In the context of the municipal law, the “precautionary principle”
means:-
•Environmental measures by the State Government and the local authorities must anticipate,
prevent and attack the causes of environmental 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.
In A.P. Pollution Control Board v. Prof. M.V.Nayudu, the Supreme Court referred to the
formulation of the precautionary principle and the new burden of proof. The Court observed,
“the principle of precaution involves the anticipation of environmental harm and taking measures
to avoid it or to choose the least environmentally harmful activity. It is based on scientific
uncertainty. Environmental protection should not only aim at protecting health, property and
economic interest but also protect the environment for its own sake. Precautionary duties must
not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk
potential”.

 Public Trust Doctrine

In M.C. Mehta v. Kamalnath, the Supreme Court had explained the scope of public trust
doctrine when an artificial deviation of the flow of a river in forest land for the purpose of
augmenting facilities of a motel was challenged through a public interest litigation. The Court
held that the State had committed a breach of trust. It further observed that:-

Our legal system — based on English Common Law — includes the public trust doctrine as part
of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for
public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, air,
forests, and ecologically fragile lands.
The State as a trustee is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership. Hence, for these reasons, the
Supreme Court declared the public trust doctrine as a part of the law of land.
 UNIT-V
5. The National Green Tribunal (NGT) Act of 2010, is a landmark legislation for providing
effective and expeditious disposal of cases relating to environmental protection and
conservation of forests and other natural resources. In the light of the above statement
prepare an exhaustive note on the role, evolution, salient features and weakness of the
NGT.
ANSWER
The NGTA Bill was introduced in the Parliament on 31 July 2009 and it was approved by the
Lok Sabha (the Lower House of the Indian Parliament) on 30 April 2010 and the Rajya Sabha
(the Upper House) on 5 May 2010 and received the President’s assent on 2 June 2010. It became
effective from July 2011.
The objectives of the NGTA provide for effective access to judicial and administrative
proceedings, including redress and remedy and to develop national laws regarding liability and
compensation for the victims of pollution and other environmental damage.

In accordance with its international commitments at the United Nations Conference on the
Human Environment 1972, in Stockholm and the United Nations Conference on Environment
and Development 1992 in Rio De Janerio, to both of which India, is party, and the Supreme
Court decisions construing the right to healthy environment as a part and parcel of the right to
life guaranteed under Article 21 of the Constitution of India, the Parliament enacted the NGT
Act, 2010.
This Act establishes a National Green Tribunal similar to the “multi-faceted court” as
proposed in the UK and those existing in other countries such as Australia, New Zealand,
Canada, the US, Kenya, Bangladesh and Malawi.

The main criticisms leveled at the NGT Act by practitioners and scholars relate to the
jurisdiction, functions and powers of the NGT. However, as suggested by Gill the NGT may not
be a “panacea for all environmental ills but it could provide a lead in terms of new forms of
environmental dispute resolution and do much to further the lead already given by the Supreme
Court in advancing a distinctly green jurisprudence.”
Sections 15 (1), 15 (3) NGT Act, 2010
The most significant feature of the NGT Act, 2010 for the purposes of this work is the
empowering provision statutorily provided to the NGT to grant damages for the restitution of the
environment and order compensation for the damage inflicted on a person, property and on the
environment.
Sections. 18 (2) and 20 NGT Act, 2010
The Act provides access for all aggrieved parties to approach the Tribunal to seek relief or
compensation or the settlement of environmental disputes under section 18(2) and the application
of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, SD and PPP in making decisions under section 20.
Whether bound by Code of Civil Procedure, Natural justice principles, the Indian
Evidence Act 1872 etc.
The NGT Act is not bound to follow the procedure prescribed under the Code of Civil
Procedure, 1908, but will be guided by the principles of natural justice. The Court shall also not
be bound by the rules of evidence contained in the Indian Evidence Act 1872. However, as the
Court functions as a civil court having original jurisdictions and also appellate jurisdiction, the
Act suggests that the normal procedure as followed in a civil action may be followed. This of
course is necessary for the Court to act not only to determine legal evidence but also to act as a
quasi-judicial and administrative organ as it envisages the determination of facts and working in
cooperation with scientific and technical bodies and experts.

Recognising Tort Liability for Environmental Claims

Incorporation of tortious principles and adoption of the corrective justice and retributive justice
principles for environmental damage signifies the legislative re-engagement with tort principles
and its role in environmental claims. This recognition of civil liability for environmental damage
is similar to the powers under the Environmental Liability Directive of the European Parliament
and of the Council 2004 on environmental liability with regard to the prevention and remedying
of environmental damage.

However, despite this statutory declaration one would question the manner in which the law has
been enacted, as its provisions do not provide any guidelines for the kind of compensatory relief
to be provided, nor do they protect a victim whose injury manifests after five years, such as in
the case of asbestos poisoning. Under section 15(3) of the Act, applications for compensation,
relief or restitution of property or the environment must be made within a period of five years
from the date on which the cause for such compensation or relief first arose.

In simple words it can be said that, a victim whose disease took over ten years to manifest
probably cannot seek relief from the NGT.
Sections 14–17, which deal with the jurisdiction, powers and functions of the NGT are unclear,
in that they do not fix liability and responsibility on who should pay damages in case of an
accident.
Section 14 provides that “the Tribunal shall have the jurisdiction over all civil cases where a
substantial question relating to environment (including enforcement of any legal right relating to
environment) is involved”, besides the questions which arise “out of the implementation” of the
specified enactments. However, the definition section does not clearly describe the factors on
which the NGT would determine “substantial questions of law”.

Section 19 provides that the technicalities of the Code of Civil Procedure 1908 and the Indian
Evidence Act 1872 shall not restrain the working of NGT, which would rather be guided by the
principles of natural justice. However, the NGT is to function primarily as a civil court and may
make its own procedures, similar to those in Code of Civil Procedure, 1908.

Section 16 (g) NGT Act

The NGT Act also allows industries to appeal before the Tribunal if they fail to obtain
environmental clearance from the Ministry of Environment and Forests.

According to Menon, earlier the NET Act, 1995 envisaged strict liability for damages arising
out of any accident occurring while handling hazardous substances and for establishing a NET
for effective disposal of cases arising from such accidents. However, the failure of the NET Act,
1995 and the NEAA Act subsequently is evidenced by the fact that for ten years it did not have a
chairperson, and most of the decisions under the NEAA Act were pro-industry and against the
environment and people’s interests.
Venkatachala, a retired Justice of the Supreme Court observes “that the government had put
such a law which had stringent provisions in cold storage for 15 years to oblige the powers that
be” and that the NGT Act provisions ought to be reconsidered.

Difficulties with the National Green Tribunal Act

Consequently, the operation of the NGT Act may also face difficulties in managing and
operating the law for individual victims of historic pollution, or where injury manifests more
than five years after exposure. Furthermore, the provisions under the NGT Act do not provide
any specific guidelines that the NGT ought to follow in applying the SD, Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and PPP. Although
there is a plan to establish circuit courts, as yet none have been established at the state level. The
NGT had not started functioning while the author was writing these chapters, however, in the last
three years (2013-16) the NGT has been lauded to have become more progressive than the
Supreme Court in developing environmental jurisprudence through the country and can be
observed to have higher degree of flexibility and focus in resolving environmental claims.
However progressive environmental decisions need innovative and efficient infrastructure
support that is still developing through the current decision making process within the NGT and
its regional branches. Although, the tribunal has provided very significant decisions in the last
three years of its working, led by Justice Swatanter Kumar and a team of expert panelists and
judges. Yet as Rosencranz and Sahu observe that evidentiary rules and procedure needs to
streamlined within the NGT for transparent decision making. One amongst many impediment
that the claimants of environmental damage face is that petitions that are filed in the Supreme
Court or the in the tribunal that have no legal basis : those that are frivolous and tinged with self
interest, such petitions block the proper functioning of the court’s work and thus “the National
Green Tribunal should be equipped with all the resources required for scrutinizing and reviewing
petitions and investigating the intentions of petitioners who seek its attention. Its function should
be more transparent than the Supreme Court’s in environmental cases. More importantly, the
procedures of Public Interest Litigation should be institutionalized with guidelines in place for
emphasizing the conditions under which the tribunal can entertain or reject a petition seeking its
attention. Moreover, given the present composition of the NGT, it is very difficult on its part to
monitor its directions in each and every case. In order to implement NGT’s directions
effectively, it is necessary to make the implementation process more efficient through the
marshaling of agencies responsible for the control of pollution, such as local government bodies
and pollution control boards. It is also highly advisable to keep the petitioner involved in the
monitoring of court directions.” The Ministry of Environment and Forests itself estimates that in
2009–10, there were at least 5,000 environmental cases pending with the NEAA. As far as
remedies for environmental harm are concerned, decisions of the Court as well as the intention of
the government and the legislative enactments by the Parliament indicate the pursuit of both
public law and private law remedies in order to do complete justice.

Further public law domain with respect to environmental law framework within India also
encompasses principles that have been adopted from international environmental treaties and
covenants and consideration of public international law. As such the Supreme Court has adopted
a strategy that reflects balanced consideration and application of significant international
environmental principles in pursuit of rendering justice. However in applying and adopting these
principles in order to strengthen the environmental jurisprudence the Supreme Court has also
overstepped its judicial functions.