FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL LAW

➢ The observation of US District Court1 triggered the Indian judiciary to

develop an indigenous jurisprudence and to formulate the remedies
and new strategies for enforcing the environmental protection
within the legal framework.
➢ CJI, Hon’ble J.P.N.Bhagvati held in M.C.Mehta Vs. Union of India2: We have
to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly
industrialised economy. We cannot allow our judicial thinking to be
constricted by reference to the law as it prevails in England or for the
matter of that in any other foreign country. We no longer need the
crutches of a foreign legal order.”
➢ Principles evolved:
o Principle of Absolute Liability.
o Polluter Pays Principle.
o Precautionary Principle.
o Public Trust Doctrine.
o Doctrine of Sustainable Development.
o Doctrine of Inter-Generational Equity.
SIPPAP=(Sustainable-Intergenerational-polluter pays-precautionary-absolute liability-public trust).
PRINCIPLE OF ABSOLUTE LIABILITY
➢ Principle of Strict Liability_ Rylands Vs.Fletcher3- English law- century old
principle.
o Any person who keeps hazardous substance on his premises will be
held responsible if such substances escape the premises and cause
any damage to another. (Escape of water from reservoir to coal
mine, damaging it)
o Liability arises not because there was any fault or negligence on the
part of defendant, but because he kept some dangerous thing on his
land and the same has escaped from there and caused damage to the
plaintiff.
o Liability arises even without any negligence on the part of the
defendant.
o Non natural use is an essential ingredient.
➢ Exceptions/Defences-
▪ Statutory Authority.
o As permitted expressly by law.

1
Union of India Vs. Union Carbide Corporation, ( 1986) 2 Comp LJ 169
2
AIR 1987 SC 1086
3
(1868) L.R. 3 H.L. 330
1|Page
 o Eg. Green Vs.Chelsea Water works Co. Ltd. Being Water
supply authority under law. Escape of water-no
liability.
▪ Vis Major-Act of God
o Natural disasters, beyond the control of the plaintiff
▪ Volenti non fit injuria
o Sports injury- Adventurous ventures.
▪ Plaintiff’s fault
o Plaintiff’s horse trespass into the property of
defendant and ate some poisonous leaves- no liability.
▪ Act of third party
o Reservoir overflowing due to the emptying of drain by
third person through it. Not liable.
➢ Absolute liability is the strict liability itself, without any of the given
exceptions.
➢ Evolved in Oleum gas leak case4 by Supreme Court of India and held: “The
enterprises 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 exemptions which operate vs-a-vis the tortuous principle
of strict liability in Reylands Vs. Fletcher.”
➢ Union Carbide Corporation Vs.Union of India5.-Bhopal Gas Tragedy-1984- A
pesticide manufacturing company- Methyl Iso Cynade(MIC) 3000
persons dead- 5-6 lakh people injured and permanently disabled.
World’s worst industrial disaster. Held to hold Absolute Liability.
➢ Indian Council for Enviro Legal Action Vs. Union of India6(Sludges Case)- Sludge
out of manufacture of Hydrochloric Acid[HCl].
o Held: “According to this rule, once the activity carried on is
hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person
by his activity irrespective of the fact whether he took reasonable
care while carrying on his activity.”
o The industries are absolutely liable not only for the remedial action
of safely disposing of the sludge, but also for the loss and suffering
sustained by the villages, although the quantum of damages could
be determined by a competent civil court.
➢ This doctrine has almost attained statutory liability status.
➢ Public Liabilities Insurance Act, 1991 (6/1991) has given statutory recognition
to this doctrine.

4
M.C.Mehta Vs. Union of India(AIR 1987 SC 1086)
5
(1991) 4 SCC 584
6
AIR 1996 SC 1466
2|Page
 o U.P.State Electricity Board Vs.District Magistrate, Dehradun7,
Allahabad High Court held that high tension wire hanging at
low height causing death holds absolute liability and ordered
for compensation. Electricity was held to be a hazardous
substance.
➢ The National Environment Tribunal Act 1995 is another instance of
statutory recognition of Absolute Liability. For damages arising out
of accidents that occur while handling hazardous substances.
POLLUTER PAYS PRINCIPLE
➢ Originally considered as an economic and administrative tool to restrain
and control the pollution problem.
➢ Recently have been recognised as a powerful legal tool to combat
environmental pollution and associated problems.
➢ Applied in the Oleum gal leak case8 against the Shriram Food and Fertilizer
Corporation.
➢ Rio Declaration –in Earth Summit- 1992- Principle 16; “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.”
➢ Vellore Citizen Welfare Forum Vs. UOI9: Polluter pays principle is essential
feature of Sustainable Development.
o 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 environmental
degradation.(How much to pay???)
➢ Accepted as part of the law of the land- as has been accepted as
customary international law.
➢ Against the tanneries- formed Loss of ecology authority- directed to
determine and recover from the polluters, cost of reversing the
damaged environment- apart from the compensation to the
individuals.
➢ M.C.Mehta Vs. Union of India10 Applied this principle for saving yellowing
and decaying Taj Mahal.

7
AIR 1998 All 1
8
Ibid
9
(1996) 5 SCC 647
10
(AIR 1997 SC 734)
3|Page
➢ S.Jagannath Vs. UOI11.- applied this principle in Shrimp Culture industry.
Ordered for compensation to the individuals and also to contribute
for reversing the damage caused to ecology by contributing to the
“Environment Relief Fund.”

PRECAUTIONARY PRINCIPLE
➢ Assimilative Capacity – concept- prior to 1972
o Environment having assimilative process, absorbs itself the shock of
pollution, but beyond certain limit the pollution may cause damage
to the environment. It require efforts to repair at that point of time.
o The role of law begins only when that limit/point is crossed, not
prior.
➢ But action against pollution cannot wait for investigation of it's quality,
quantity, concentration and boundaries.
➢ Hence there was a shift from Assimilative capacity theory to
Precautionary Principle.
➢ The development in the scientific advancement in ecology and
environmental studies has helped to anticipate and mitigate the
environmental impacts, resulting in implementing precautionary
principle.
➢ Rio Declaration –in Earth Summit- 1992- Principle 16; “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, 12lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to
prevent environmental degradation”.
➢ Vellore Citizen Welfare Forum Vs. UOI13: Declared that precautionary
principle is an essential feature of sustainable development.
o Defined the precautionary principle in the following terms:
▪ Environment measures- by the State Government and the
statutory 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.

11
(AIR 1997 SC 811)
12
Endosulfan case
13
(1996) 5 SCC 647
4|Page
 ▪ The ‘onus of proof’/ the ‘burden of proof’ is on the actor or the
developer/industrialist to show that his action is
environmentally benign14.

➢ Accepted as the part of domestic law- being the part of international

customary law, not contrary to municipal law.(Jolly George Vs. Bank of
Cochin15)
➢ M.C.Mehta Vs. Union of India16 Applied this principle for saving yellowing
and decaying Taj Mahal. – Taj Trepezium Zone(TTZ)- emission form
coal and coke based industries.
➢ A.P.Pollution Control Board Vs. Prof M.V.Nayudu17 formulated the
precautionary principle-and- new burden of proof-Shall protect the
environment for it's own sake-not only for the sake of humans.
➢ Central Government through Ministry of Environment and Forests by
notification18 adopted this order and principle- Schedule-1 & 2
industries for it's establishment, modernisation or expansion shall
obtain prior environmental clearance.
o Purpose- Development activity takes place in harmony with
the environment.
➢ Concept of Environment Impact Assessment (EIA) evolved from this
principle- A prior assessment.
➢ Environment Management Plan- for assessment, prevention, elimination
or mitigation of the impact ab-initio.
PUBLIC TRUST DOCTRINE
➢ Democratic Republic- sovereign is public.
➢ The state is the trustee of all natural resources, which are by nature meant
for public use and enjoyment. The public at large is the beneficiary of
the said resources.
➢ The state as a trustee is under legal duty and obligation to protect the
natural resources. These resources cannot be converted into private
ownership.
o Eg: Forests, River, Riverbanks, Sea, Seashore, air, ecologically
fragile lands, water bodies, fresh water resources, ......marsh
lands-.....
Origin

14
=gentle, caring, benevolent.
15
AIR 1980 SC 470
16
(AIR 1997 SC 734)
17
AIR 1999 SC 912
18
S.O.85(E) dated 29/01/1992. ( Amended from time to time)
5|Page
➢ Roman Jurisprudence- evolved the doctrine of public trust – Certain
common properties such as rivers, seashores, forets and the air were
held by Government in Trusteeship for the free use of the public.
o Res nullious- owned by none
o Res communious- owned by everyone.
➢ Under English(Kingdom)law, the sovereign(Crown/King) owned these
resources. There was no resource or property without ownership. In
case of no personal ownership, the property vests with the
sovereign.
o So there were only two types of ownership, either private
owned or Government (State) owned.
o Deemed to be held in trust by the Crown for the benefit of
the public.
o “Riparum usus publicus est jure gentium sucut ipsuis fluminis”= the
use of river banks, by the law of nations is public, like that of
the stream itself.
➢ M.C.Mehta Vs.Kamalnath19 ...
o Facts of the case- River Beas (HP-Punjab)– The present MP Chief
Minister and the then Minister of Environment and Forest
through his family company- Span Motels Pvt.Ltd. – built a
club on the river bank- Huge forest lands were encroached
upon-later regularised and leased to the company, when he
was the minister for environment and forest.
o The course of the river was diverted for constructing this
club.
➢ The Supreme Court of India applied Public Trust Doctrine and adopted this
as part of our legal system.
➢ Applied this doctrine in K.M. Chinnappa Vs. UOI20 petition in case of
renewal of mining leases granted to Kundrekukh iron ore company
in Kundremukh National Park.
➢ Prof Sax21- imposes following three restrictions upon the state authority:
o The property subject to the Trust must not only be used for a public
purpose, but it must be held available for use by the general public;
o The property may not be sold even for a fair price;
o The property must be maintained for particular types of uses.

19
(1997) 1 SCC 388
20
AIR 2003 SC 724
21
Joseph L.Sax- in “ public Trust Doctrine in natural resource law: effective judicial entervention” Michigan law
Review, Vol-68, Part-I.
6|Page
➢ M.I.Builders Ltd Vs.Radhey Shyam Sahu22. SCI held that this doctrine will be
applicable, even in the absence of any statute to nullify the acts of
the state.
➢ Now being used as a legal and planning tool for fulfilment of sovereign’s
role as trustee of environment.
DOCTRINE OF SUSTAINABLE DEVELOPMENT
➢ “Development that meets the needs of the present without
compromising the ability of the future generations to meet their
own needs.”
➢ Brundtland report-
o Prime Minster of Norway – Ms. G.H.Brundtland- Chairman of –
World Commission of Environment and Development (WCED) –
➢ Salient features
o Intergenerational equity (Pass on what we received- only improving, no degradation)
o Conservation of natural resources.
o Environmental protection.
o Obligation to assist and co-operate
o Eradication of poverty
o Financial assistance to developing countries.

➢ Herman Daly- Economist of World Bank

o Harvest renewal resources only at the speed at which they
regenerate
o Limit wates to the assimilative capacity of the local eco-
system or release those waste elsewhere where they can be
assimilated
o For the non-renewable resources, require that part of profit
be put aside for investment in a renewable substitute
resource.
➢ The Judiciary are often called upon to balance between Development and
Environment.
➢ Rio Declaration –in Earth Summit- 1992- Principle 3; “The right to
development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future
generations.”
➢ Rio Declaration –in Earth Summit- 1992- Principle 4; “In order to achieve
sustainable development, environmental protection shall constitute
an integral part of the development process and cannot be
considered in isolation from it.”
22
(1999) 6 SCC 464
7|Page
➢ Doon Valley case23:First case in India, balancing between environment and
Development.
o Reiterated that development is not antithetical to
environment
o Tapping of natural resources for development shall be done
with the requisite attention and care to that ecology and
environment may not be affected in any serious way.
o There shall not be depletion of resources
o Long term planning must be undertaken to keep up the
national wealth.
o
➢ In M.C.Mehta Vs. Union of India24: SCI held that, it is not possible to
eliminate the hazard and risk of utilising science and technology.
o The only possibility is to mitigate the effects and impacts;
o So as to pose least threat to safety of community; and
o Maximise safety precautions.

➢ Coastal Zone Protection Case25: “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 ensuing the protection of
environment.”
o It was filed against the violation of coastal zone regulations.
o
➢ Vellore Citizen Welfare Forum Vs. UOI26: “The traditional concept that
development and ecology are opposed to each other is no longer
acceptable.”
o ‘Sustainable development has come to be accepted as a
viable concept to eradicate poverty and improve the quality
of human life while living within the carrying capacity of the
supporting ecosystem’.
o Leather industry polluting- but earns foreign exchange and
provides employment. But has no right to degrade
environment and destroy ecology. A balance is required to be
maintained. –Relocation- recycling of waste water- water
purifying plants- safe disposal of waste materials, without
being let out to the rivers.. etc.

23
Rural Litigation and Entitlement Kendra Vs. State of UP ( AIR 1985 SC 652)
24
( AIR 1987 SC 965)
25
Indian Council for Enviro-Legal Action Vs. Union of India( 1996) 5 SCC 281
26
(1996) 5 SCC 647
8|Page
➢ Applied this doctrine in K.M. Chinnappa Vs. UOI27 petition in case of
renewal of mining leases granted to Kundermukh iron ore company
in Kundremukh National Park.
o ‘The balance has to be stuck between the two interests.’
o ‘The convenience and benefit to a larger section of the
people has to get primacy over comparatively lesser people’s
hardship.’
o ‘The development that meets the immediate needs, without
considering the needs of the future, is creating legacy of
environmental debt, which cannot be written off.’
➢ Johannesburg Declaration on Sustainable Development(2002):
o We the representatives of the peoples of the world,
assembled at the world summit on sustainable development
in Johannesburg, South Africa from 2-4 September 2002,
reaffirm our commitment to sustainable development

DOCTRINE OF INTER-GENERATIONAL EQUITY

Brundtland report defines the sustainable development as follows:-
➢ “Development that meets the needs of the present without
compromising the ability of the future generations to meet their own
needs.”
➢ All the above principles culminate into this intergenerational equity.
➢ The tragedy of civilized man: every source from which he has increased
his power on earth has been used to diminish the prospects of his
successors.
➢ If our forefathers had destroyed the environment as we do today, we
would not have enjoyed this life at all!!!! Could not been even born.
➢ We are having a life today is because our past generations had preserved
the resources and environment for their future generations, that is
the present generation.
➢ We are also the past generation for the future generations.
o Continuity/Self centric
➢ So we also have the same duty and responsibility to the future
generations.
➢ That is called the intergenerational equity.
➢ Every generation owes a duty to all succeeding generations to develop
and conserve the natural resources of the nation in the best possible
way. The past generations did their duty, and the future generations
demand the same duty from the contemporary generation.
27
AIR 2003 SC 724
9|Page
➢ In State of Tamilnadu Vs. Hind Stone 28SCI held that: “Every generation
owes a duty to all succeeding generations to develop and conserve
the natural resources of the nation in the best possible way. It is in
the interest of mankind. It is in the interest of the nation.”
➢ Stockholm Declaration on Human environment, principle.1: “Man has the
fundamental right to freedom, equality and adequate conditions of
life, in an environment of quality that permits a life of dignity and well
being, and he bears a solemn responsibility to protect and improve
the environment for the present and future generations.”
➢ Principle.2: “The natural resources of the earth including the air, water,
land, flora and fauna and especially representative samples of natural
ecosystems must be safeguarded for the benefit of present and
future generations through careful planning or management, as
appropriate.”
Rio Declaration –in Earth Summit- 1992- Principle 3; “The right to
development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future
generations.”
➢ Johannesburg Declaration on Sustainable Development(2002):
o We the representatives of the peoples of the world,
assembled at the world summit on sustainable development
in Johannesburg, South Africa from 2-4 September 2002,
reaffirm our commitment to sustainable development
o We commit ourselves to build a humane, equitable and caring
global society cognizant of the need for human dignity for all.
o At the beginning of this summit, the children of the world
spoke to us in a simple yet clear voice that the future belongs
to them, and accordingly challenged all of us to ensure that
through our actions they will inherit a world free of the
indignity and indecency occasioned by poverty,
environmental degradation and patterns of unsustainable
development.
o As part of or response to these children, who represent our
collective future, all of us, coming from every corner of the
world, informed by different life experiences, are united and
moved by a deeply felt sense that we urgently need to create
a new and brighter world of hope.
o From this continent, the cradle of humanity, we declare
through the plan of implementation and this declaration, our

28
AIR 1981 SC 711
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 responsibility to one another, to the greater community of
life and to our children.
➢ Applied this principle in Consumer Education and Research Society Vs.UOI29
➢ Applied this doctrine in K.M. Chinnappa Vs. UOI30 petition in case of
renewal of mining leases granted to Kundermukh iron ore company
in Kundermukh National Park.
o “While thinking of the present, the future should not be
forgotten, We owe a duty to future generations and for a
bright today, bleak tomorrow cannot be countenanced.
...................while today is yesterday’s tomorrow, it is
tomorrow’s yesterday as well.”
➢ Doon Valley case31:
o “It is always remembered that these are permanent assets of
mankind and are not intended to be exhausted in one
generation.”

29
(2002) 2 SC 599
30
AIR 2003 SC 724
31
Ibid
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