ENVIRONMENTAL LAW

Human beings are made up of 5 elements – Sky, Earth, Air, Water and Fire. If any of these elements are
disturbed, then the entire thing is disturbed.

WHY ENVIRONMENTAL LAW?

MC Mehta is the reason Environmental Law is in existence. He is referred to as the Green Lawyer. He
associated right to life to right to healthy environment.

In the case of MC Mehta v. Union of India (1991), he filed a writ petition under Article 51A(g)
[fundamental duty]. He said that everyone should know the importance of the environment because they
have a fundamental duty towards the same, because not everyone is educated. He raised 3 contentions:
- all cinema halls must exhibit at least 2-3 messages on environment free of cost (everyone goes for
entertainment even if not school)
- life has become more competitive so norms for good living conditions were now old so people
must know about them, as the population increases, citizens must be informed.

After petition was filed, the court gave direction to impose as a condition of license at least 2 slides on the
environment to State and UT governments. Even AIR and radio channels were asked to make interesting
broadcasting messages on the environment. Every State & UT to take concrete steps to introduce
environmental studies by the next academic year – 1992. The basic element was to inform
people.However, until 2003 no one did it until the SC directed it again as they wanted all school
curriculums to go green. 10 states were imposed heavy penalty for not starting the green course (Justice
Santosh Hegde & BP Singh).

WHAT IS ENVIRONMENT?
Ministry of Environment, Forest & Climate Change & the Ministry of Human Resource Development are
responsible for the environmental law education, policy, programmes and policies. Section 2(a) of The
Environment (Protection) Act, 1986 says – 

"environment" includes water, air and land and the inter – relationship which exists among
and between water, air and land, and human beings, other living creatures, plants, micro-organism
and property”

Environment comes from the word "environa" which means the surroundings. Everything which is
around us that affects the people is the environment. It includes the complex, physical, chemical &
biological factors surrounding an organism of an ecological community. Such factors act and interact with
various species and organisms to affect their form, growth and survival. For example, after the Atomic
Bombings & Bhopal Gas Tragedy, the people born there are born with deformities and diseases.

Environmental Pollution
Any unfavourable altercation of this environment is termed an environmental pollution.
5 common types - air, water, land, thermal & radiation.

RELEVANT POLICIES BEFORE THE 1986 ACT

In the British era, we had specific acts, such as:
- Shore Nuisance Act, 1853 & Merchant Shipping Act, 1858 - dealt with pollution of water;
- Fisheries Act, 1897
- Bengal Smoke Nuisance Act, 1905
- Bombay Smoke Nuisance Act, 1912
- Wild Birds & Animal Protection Act, 1912
After independence, the Government did not care much about resource conservation & environment
because they cared more about economic stability and reducing poverty.

HOW WAS ENVIRONMENTAL LAW PREVALENT DURING THE ANCIENT TIMES?

Rigveda says that cleaning and planting of trees would promote happiness and a safe life. Similarly, even
in the Muslim and in the Christian holy books, there are certain mentions made in, promoting protection
of environment for a safe and a happy living. It was understood as the ‘dharma’ (duty) of each and every
person to ensure protection of the environment. There is a correlation between the five elements of life
and the sensory organs of human beings. Kautilya’s Arthashastra also points at making environmental
protection an extremely important duty. Rig Veda also mentions five elements that provides the basis for
life {Fire, water and all of that} These Vedas also point at maintaining an ecological balance in the
society. Yajur Veda on the other hand upholds the importance of conducting yajnas, as the gases that
come out of these yajnas were believed to purify the air. Sama veda focuses on maintaining the season
cycle, and therefore the human activity should also remain in correspondence of preserving this season
cycle. Atharva Veda says that it is the duty of the mankind to give back what they took from the nature, in
whatever form they can.

While during the Mughal rule, the rulers focused only on hunting instead of environmental protection,
this marked the beginning of the environmental deterioration. The environmental measures were also
introduced post-Independence only via the Stockholm conference and not via the Constitution of India as
the policy – makers focused on economic development and poverty alleviation.

EFFORTS MADE TOWARDS ENVIRONMENTAL PROTECTION

As a part of the Stockholm Declaration of 1972, the Indian government took steps for the protection and
preservation of environment. The Environment Protection Act, 1986 was introduced along with setting up
of NCEPC [National Committee of Environment Planning and Co-ordination] in the year 1972. This
NCEPC was converted into a permanent ministry which aimed at protecting and preserving environment
– called Ministry of Environment and Forest. Further, there was an introduction of Water (Prevention and
Control of Pollution) Act, 1974 which establishes a Pollution control board at both the centre and the state
level.

Article 51A(g) of the Indian Constitution mentions the fundamental duty of the citizens to protect and
improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for
living creatures. While, 48A of the Indian Constitution [introduced after the 42 nd amendment] imposes a
duty on the state to take efforts to protect the environment. Some of the other legal measures introduced
by the Indian government are as follows:

- The 4th five-year plan focused on introducing environment as one of the important fields for focus
so as to put in efforts towards its conservation.
 - The Pitamber Pant Committee also was set up to keep a check on environmental protection and
ensure environment development.
- The Forest Conservation Act, 1980 was also introduced.
- The Air [Prevention and Control of Pollution] Act, 1974.
- The Public Liability Insurance Act, 1991.
- The Biological Diversity Act, 2002.

Jadhav Molai Payeng – Forest man of India

Kollakkayil Devaki Amma – She grew a Forest
Jannat – Cleaned Dal Lake

WHAT MAKES LIFE POSSIBLE ON EARTH?

- Location in the solar system, the gravitational tugs, the gamma rays’ and supernova effects are
lesser;
- Atmosphere around the Earth;
- Earth has moon as its own star – which is a stabilizer causing tides – earth and moon have
gravitational pull between them;
- Ozone layer – protects earth from harmful UV rays.

INTERNATIONAL INSTRUMENTS ON AIR POLLUTION

- Air pollution Act, (US)
- Clean Air Act, 1956 (UK)
- Water Quality Conservation Act, 1958
- Federal Air Pollution Legislation – Clean Air Act, 1963

INTERNATIONAL DISASTERS DUE TO AIR POLLUTION

- The Meuse Valley Belgium Fog, 1930
- The London Smog, 1952
- Minamata Disease, 1958
- Yokkuichi Asthma where due to air pollution in 1958, there was widespread asthma in the
population in Japan.

SOURCES OF ENVIRONMENT LAW

Environment law is related to several disciplines. It is derived from various sources:
- Common Law, developed by courts through judicial precedents;
- Statutory Law with respect to regulations and principles.

CAN ENVIRONMENTAL VIOLATIONS BE BROUGHT UNDER PUBLIC NUISANCE?

Attorney General v. PYA Quarries: Lord Denning – Lord Denning defined Public Nuisance as a nuisance
so widespread in range or so indiscriminate in effect, that it would not be reasonable to expect one to take
proceeding on his responsibility to put a stop to it. But that should be taken as the responsibility of the
community at large. It amounts to an interference upon the common rights of the general public.Section
268 of IPC deals with public nuisance.

POINTS PERTAINING TO ENVIRONMENTAL LITIGATION

 - Locus Standi: What is your locus to claim environmental violation? (In PIL, one needs to show
that the public at large is affected.)
- Burden of Proof: Whoever comes to the court has to prove the right exists. In environmental law,
there is no burden of proof, no need to substantially prove a harm to yourself, i.e., depicting that
facts exist. Till the time the entire thing is proved, the burden is in the hands of the person who
approaches the court. Prima facie, one needs to make a case that there is some harm to the
environment.

CONSTITUTIONAL PROVISIONS DEALING WITH ENVIRONMENT

- India is among the few constitutions which have specific provisions for environment protection.
- Tarun Bharat Sangh Alwar v. Union of India (1991) (Sariska case)
It gives the guidelines with respect to environmental conservation. In this case,  SC adopted a range of
principles for environmental law. This placed government above with business, individual liberty above
government & environment above all. It talks about the fundamental standards laid down by the SC for
the duty of the states for environmental protection.

 Enforcement agencies are under strict instructions and obligations to strictly enforce
environmental protection laws. [NRV Case]
 Government agencies may not plead non-availability of funds, unavailability of staff to justify
their non-efficiency under environmental protection laws & norms.
 Polluter pays principle is the basic law of the environmental protections laws.
 Precautionary principle requires the industrialists or economic developers to be under the
obligation to show that their actions are environmentally friendly. Treatment must be there before
releasing substances into the environment.
 Government development agencies must give due respect to the ecological factors. They must be
active towards the sustainable development. Government obligation for sustainable development.
 Stringent action ought to be taken against defaulters who carry on profit making industrial
activities against the environmental protection laws.
 The powers conferred under the environmental laws must only be used to advance the protection
of the environment, and not to defeat the object of law.
 The state is the trustee of all natural resources which are by nature are meant for public use and
enjoyment. Public at large is the beneficiary of these natural resources. You cannot have a private
ownership.

DIVISION OF LEGISLATIVE AUTHORITY

Which list contains environment? It is not explicitly mentioned.
 Concurrent List 17(a) – Forest; Concurrent 17(b) – wildlife; 20(a) – pollution control;
 State list water entry 17; Public health, agriculture, etc. State list entry number 6, 14, 18, 21;
 Atomic energy, oil resources, inter-state rivers, etc. – 6, 54,55,56,57.
 Constitutional Articles – 246, 248 and 249 and Addition of Art. 51(g) as the 42 nd amendment.
It has been divided in such a way that sanitation, disposal, etc. are tackled at the local level. Uniform
standard law/nationalised acts for water, air pollution, wildlife conservation, etc. The distribution
pertaining to the environment protection in the 3 Lists is influenced by the Government of India Act,
1935 and the main role was played by the Drafting Committee. Entry 56 widened the scope of the Union
List says that development of interstate rivers is for the purpose of irrigation, hydraulic power is for the
public interest.

Sachidanand Pandey v. State of West Bengal– DPSP and Environmental Law: 

Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Art. 48 A
and 51A(g) of the Constitution. When the court is called upon to give effect to DPSP and fundamental
duties, the court is not to shrug its shoulders and say priorities are a matter of policy and upto the
government. The least that the Court can do is examine if relevant conditions are kept in mind.
 Article 253 plus Entry 13 of the Union List gave birth to the Air Pollution Act, 1981 and the
Environmental Protection Act to give effect to the Stockholm Declaration. 

HOW TO ASSOCIATE FUNDAMENTAL RIGHTS AND ENVIRONMENT PROTECTION?

In Maneka Gandhi, Art. 21 expanded to – Personal liberty, and recognised the unarticulated liberties
implied by Art.21. After this, right to wholesome environment, and many other rights were encompassed
using the latter part of this reasoning. 

- Right to Wholesome Environment 

 Dehradun Quarrying Case, 1988 (Rural Litigation & Entitlement Kendra v. State of UP)
Illegal mining in Mussoorie and Dehradun due to which the ecosystem was adversely affected. Rural
Litigation and Entitlement Kendra v. State of UP (Citation for the Dehradun case). They wrote a letter to
the Supreme Court. The Court treated this as a petition under Art. 32. In August 1988, the final judgment
came, after setting up of several expert committees and several interim orders being passed that right to
life includes right to enjoy unpolluted air and water. If anything endangers or impairs the quality of life in
derogation of law a citizen has the right to move the Court 
 Subhash Kumar v State of Bihar, 1991– Town Planning case 
Every person has the right to a wholesome environment under Art. 21.The Court held that R2L includes
the Right to enjoy Unpolluted Air & Water. If any derogates life, a citizen can move Court under Art. 32.
 Virendra Gaur v State of Haryana, 1995 
- Court observed that Art. 21 protects the right to life as a fundamental right and includes the right
to human dignity which encompasses within its ambit the preservation, protection, of
environment; ecological balance; free from pollution of air and water, sanitation, without which
life cannot be enjoyed.
- Air and water pollution should be regarded as a violation of art. 21, therefore a hygienic
environment is an integral facet of right to life and it would be impossible to live with dignity
without a human healthy environment. 
- Further, there is a constitutional imperative on the State Government and the municipalities to
promote, protect and improve both the manmade and the natural environment. 

- Right to livelihood
 Olga Tellis
 Banwasi Seva Ashram v State of UP, 1993 – rights of forest dwellers who were thrown out by
NTPC for their project were in question. NTPC can acquire only if NTPC provides certain
facilities for these forest dwellers.
 - Right to equality
 State of HP v Ganesh Wood Products, 1996
- A decision making authority must give due weight and regard to ecological factors, which are
environmental uses of sustainable and governmental use.
- A government decision that fails to take into account relevant consideration affecting the
environment is invalid.
 CRZ Notification case/Indian council for Enviro legal action v UOI, 1996
- Environmental statutes were enacted to ensure a good quality of life for unborn generations as it
is they who must bear the brunt of ecological issues.

- Freedom of trade
Environmental regulation becomes more stringent when industrial challenge to agency action is likely to
increase.19(1)(g) of the Constitution of India mentions the same.
 Abilash Textile v Rajkot Municipal Corporation
Some people were conducting the business of dying and printing. They were issued with a notice saying
that since the factory was discharging dirty water on public drainage without treatment of the water, there
was a challenge on basis of public health, they were told that if they don't fix it, they will have to close the
factory to ensure there is no illegal discharge. The Defendants said that they have been doing this for a
number of years and if they are shut, a number of families will be affected due to the economic effects.
The Court said that no, there is no freedom of trade at the stake of public health.

INTERNATIONAL EFFORTS TO CURB ISSUES

Sustainable Development: Usage of the resources in such a way that people are able to preserve them for
the future generations. It is an economic development that is conducted without depletion of natural
resources. Nature is a common heritage for mankind. This means no person can have an individual right
over it. They all have a duty to preserve it.

General Principles of State Responsibility & International Treaties (control the liberties & duties of
states)

Sic Utero Twou Ut Alienum Non Laedas – one must use his own rights so as not to injure others. Article
21 & 22 of the Stockholm Conference. Stockholm Conference is considered the Magna Carter of
environmental laws/rights. (Magna Carter – first declaration of human rights.)

Trail Smelter Case – transboundary pollution case, involving Canada & USA. It was emitting Sulphur
dioxide which caused harm to Washington States' greenery. Hence, US filed charge against Canada for
injuring them. Case was referred to an international forum. Eventually contributed to establishing the
harm principle in the environmental law of transboundary pollution.

TERMINOLOGY
 International Treaties –Continuation and ratification of the agreement which the parties have
entered into at the time of convention. It's a more finalised version of a convention.
 International Conventions – A formal meeting between the delegates/members of the organisation
that result in a general agreement. They later on take shape of a treaty.
  International Protocols – It is an agreement that stands on its own but is linked to a convention or
a treaty. It is used as an addition.
 Conference – It is a meeting which usually take place between large group of parties that are
interested
 Summit – It is a meeting between the heads of state

TYPES OF ARBITRATION (MISSING NOTES)

Lac Lenox arbitration agreement between France & Spain - Procedure of prior notification, consultant
and negotiation whenever changes are being made.

Corfu Channel Case (UK & Albania 1949) – OCJ declared every state has a duty not to knowingly allow
its territory to be used for acts contrary to the rights of other states.

STOCKHOLM CONFERENCE [1972]

Principles (out of 26):

 Man has the fundamental right to freedom, equality and adequate condition of life in an
environment of a quality that permits a life of dignity and wellbeing. 
 Man bears the sole responsibility to protect and improve the environment for the present and the
future generations.

BasicDecisions (out of 109):

 Declaration done on the human environment.

 Action plan for the human environment which is essential for sustenance of humankind.
 Resolution on institutional and financial agreements.
 Resolution condemning nuclear weapons test especially those carried out in the atmosphere.
 Decision to refer to government recommendation for action at national level.
 Recommended at international & national level the appraisal of environmental damages. [Water
Prevention, 1974; Air Prevention, 1981; Environmental Protection, 1986; Factories Amendment,
1987]
 109 recommendations were made during the SC. SC was not the only one conference, it also had
sub-conferences.

The five focus areas:

- Problems and Management of Human settlement;

- Natural resource management;
- Pollution control measures;
- Social and cultural aspects;
- Development and the Environment;
- Right to protect the environment;
- Population and policy;
- Ban on Nuclear Weapons.

BASEL CONVENTION, 1989

It was adopted to check the dumping of hazardous and toxic waste, and the consequential damage to the
environment. The UNGA requested all members to take legal actions to prevent such kind of dumping.
Expert group was set up as the problem was increasing under the UNEP (UNEP came into existence with
this).

It has been divided into 29 articles with 6 annexures to it. Although it includes hazardous & toxic waste, it
does not include radioactive waste and the waste derived from the normal operation of the ship.
International rules & standards.Transboundary movement of such waste is to be borne by insurance and
other guarantee.

Before export of hazardous waste, it must have the written consent of the importing country. There must
be a clear cut agreement regarding the same.There needs to be primary information exchange and
consultation regarding hazardous waste. There is a clause of transparency.It has no central enforcing
agency but it basically worked from the member countries itself.

The important enactments that were enforced were:

- Hazardous Waste Management Rules, 1989

- Biomedical Waste Rules, 1998

EARTH SUMMIT, 1992

It is nothing but the UNCED [United Nations Conference on Environment and Development], which is
often called the Earth Summit. It focused on environment protection, preservation and sustainable
development. This directed the world to the need of sustainable development. The main aim of
Sustainable Development is not just to cater to the needs of the present generation but also extend the
benefits to the future generations. This summit resulted in the following documents:

- The Rio Declaration on Environment and Development, which is made up of 27 constitutional

provisions also contains an important Preamble. Some of the noteworthy principles of this
declaration are:
1. Principle 1, which says that “Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with nature.”
2. Principle 13, which says that “States shall develop national law regarding liability and
compensation for the victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further international
law regarding liability and compensation for adverse effects of environmental damage
caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”
3. Principle 15, says 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 countries
are expected to take a precautionary measure wherein an irreparable damage or a serious
harm could be avoided, to the best of their capabilities. Further, the states are also not
permitted to take the defense of lack of scientific know-how and tools, for not being able to
avoid serious harm.
Important Cases:
1. Madison v Duck Town Sulphur Companies: The plaintiff and other residents filed a suit against
the defendant companies claiming that the two companies’ copper mining operations were
causing nuisance to the plaintiffs’ enjoyment of the land. The court agreed with the reasoning of
the plaintiffs and ordered for the payment of monetary damages as the proper remedy for each of
the plaintiffs. If there is no way an alternative approach could be adopted for mining without
causing nuisance, hefty penalties shall be imposed.
2. Georgia v Tennessee Copper Company: The State of Georgia (State) filed a bill alleging that in
consequence of a discharge of noxious gases by Tennessee Copper Company (Copper) a
wholesale destruction of forests, orchards, and crops was going on, and other injuries were done
and threatened in five of its counties. The State filed a motion for a preliminary injunction, which
was denied. Without objection, the case was tried on affidavits. The Court found that, although
the State actually owned very little of the land affected, the State's case was brought in its
capacity as a quasi-sovereign. The State had an interest behind the titles of its citizens and had the
last word as to whether its lands would be damaged in such a manner. The Court found that when
the states by their union made the forcible abatement of outside nuisances impossible to each,
they did not thereby agree to submit to whatever might be done and they were still able to file suit
in the Court. The evidence as to the pollution of the air and the magnitude of that pollution caused
by the companies was not open to dispute and the State had the right to prevent the pollution. The
Court rejected the argument that the State was guilty of laches because diligence was shown.

- Agenda 21

It also further led to opening of certain conventions for signatures:

- Convention on Biological Diversity: This focuses on tackling of eradication of Diverse species

- Convention on Climate Change: This aims at preventing global climate change

Landmark cases relating to EIA [We will discuss this in greater detail, later]

1. Indian Council for Enviro-Legal v Union of India and Ors [1996, SC]
2. Vellore Citizens Welfare Forum v Union of India and Ors [1996, SC]
 
KYOTO PROTOCOL, 1997
- This focuses on reducing greenhouse gases concentrations in the atmosphere and carbon
emissions. This protocol was adopted at a conference which was conducted in Kyoto, Japan. It is
based on the principle of ‘Common but differentiated responsibilities and respective capabilities’.
It is legally binding although India did not make it legally binding upon itself.

MONTREAL PROTOCOL, 1987

- This focuses on the protection of the depleting ozone layer of the Earth. It aims at stopping the
production of substances that release gases which cause the ozone layer to deplete.

For the next class: What is the difference between MDGs and SDGs?

WORLD CHARTER, 1982

 - UN tried to develop a code of conduct for the protection, preservation of global natural habitat.
The human conduct would be judged and assessed on the basis of these principles. It said that
social and economic development cannot be done until the natural system is taken into
consideration. These five principles are:
1. Nature shall be respected and its essential processes shall not be impaired.
2. The genetic viability on the earth shall not be compromised; the population levels of all life
forms, wild and domesticated, must be at least sufficient for their survival, and to this end
necessary habitats shall be safeguarded.
3. All areas of the earth, both land and sea, shall be subject to these principles of conservation;
special protection shall be given to unique areas, to representative samples of all the different
types of ecosystems and to the habitats of rare or endangered species.
4. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized
by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in
such a way as to endanger the integrity of those other ecosystems or species with which they
coexist.
5. Nature shall be secured against degradation caused by warfare or other hostile activities

“Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which
ensure the supply of energy and nutrients”
Brundtland Report, 1987
This is based on the theme of ‘Our common future’. The major concern was regarding global warming
and ozone depletion. These two problems were addressed by the UN General Assembly’s Environmental
expert group. This committee was called World Commission on Environment and Development
(WCED). The two topics that were concentrated upon were:
- The role of international economy, population and human resources;
- Food Security;
- Species and Ecosystem – it also concerns topic in relation to energy.
- Sustainable development.
It also led to the establishment of the UN Programme of Action on Sustainable Development and the Rio
Conference, 1992. This conference created the UN Commission on Sustainable Development.
Why is it considered to be very important?It defined sustainable development for the first time. It said that
there is a need to attain this quality of sustainable developed life by 2030.

WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT, 2002

This was organized in the year 2002 which was based on Principle I of the Rio Declaration. Principle I
says that, “Human beings are at the centre of concerns for sustainable development. They are 11 entitled
to a healthy and productive life in harmony with nature.”. It was conducted to strengthen the role of
sustainable development. The basic objective of the World Summit was to examine the implementation of
resolutions that was made at the Rio Conference. Additionally, another objective was to hold a 10-year
review after the resolutions were made. The main focus area was Agenda 21. The Summit had certain
focus areas:

- Poverty
- Health
 - Energy
- Technology
- Water Quality and Availability
- Oceans
- Fisheries

There were various measures that were introduced:

- With respect to water and sanitation, it was decided that the number of people who do not have
access to potable water be reduced to half by 2015.
- There was a further agreement between the various countries that the poor shall have access to
energy.
- With respect to global warming, the agreement referred that there is a pressing need to ratify the
Kyoto Protocol.
- With respect to Biodiversity and natural resources, there was an agreement that by 2010, the rate
at which extinction of species is occurring must be cut down.
- Further, another focus area was to restore fisheries to their maximum abilities by 2015 and to
establish a marine protected area by 2012.
- Also, to improve the accessibility of environmentally sound ozone depleting chemicals by 2010.
- With respect to Health, the agreement was entered that recognized that access to healthcare will
be consistent with human rights, cultural and religious values. The countries also agreed to phase
out by 2020, the use and production of chemicals that harm human health and environment.

MILLENNIUM DEVELOPMENT GOALS [“MDGS”]

Rio Declaration of 2021 is based on these MDGs. In September 2000, the leaders of 189 countries signed
the Millennium Declaration at UN, where they committed towards the achievement of eight measurable
goals, within 15 years. These goals were:

1. to eradicate extreme poverty and hunger;

2. to achieve universal primary education;
3. to promote gender equality and empower women;
4. to reduce child mortality;
5. to improve maternal health;
6. to combat HIV/AIDS, malaria, and other diseases;
7. to ensure environmental sustainability; and
8. to develop a global partnership for development.

RIO DECLARATION, 2012

The motto of this conference was the ‘future we want’. It resulted in a document that contained the
measures for the implementation of sustainable development. In this declaration, the members decided to
add a set of Sustainable Development Goals [SDG]. There were certain policies that were brought in,
which were:

- Adoption of ground breaking guidelines on green economy policy;

- Intergovernmental process under the General Assembly to prepare options on a strategy for
sustainable development financing;
 - To strengthen the UN Environment Programme;
- Establishment of a High Level Political Forum for Sustainable Development;
- The governments also requested the UN Statistical commission in consultation with the UN
System Entities and other relevant organisations to launch a programme of work in the area of
measures of progress to complement GDP;
- Governments also adopted the 10-year framework of programmes on sustainable consumption
and production patterns;
- The Conference also took forward-looking decisions on a number of thematic areas, including
energy, food security, oceans, cities, and decided to convene a Third International Conference on
SIDS in 2014;
- The Rio Conference also galvanized the attention of thousands of representatives of the UN
system and major groups. It resulted in over 700 voluntary commitments and witnessed the
formation of new partnerships to advance sustainable development.

SUSTAINABLE DEVELOPMENT GOALS [“SDGS”]

This is a result of the Rio Conference, 2012. There are 17 SDGs. They are as follows:
1. No Poverty, therefore completely eradicate poverty in all forms everywhere.
2. Zero Hunger: End hunger, achieve food security and improved nutrition and promote
sustainable agriculture;
3. Good Health and Well-being: Ensure healthy lives and promote well-being for all at
all ages;
4. Quality Education: Ensure inclusive and equitable quality education and promote
lifelong learning opportunities for all;
5. Gender Equality: Achieve gender equality and empower all women and girls;
6. Clean Water and Sanitation: Ensure availability and sustainable management of
water and sanitation as well;
7. Affordable and Clean Energy: Ensure access to affordable, reliable, sustainable and
modern energy for all;
8. Decent Work and Economic Growth: Promote sustained, inclusive and sustainable
economic growth, full and productive employment and decent work for all;
9. Industry, Innovation, and Infrastructure: Build resilient infrastructure, promote
inclusive and sustainable industrialization and foster innovation;
10. Reducing Inequality: Reduce inequality within and among countries;
11. Sustainable Cities and Communities: Make cities and human settlements inclusive,
safe, resilient and sustainable;
12. Responsible Consumption and Production: Ensure sustainable consumption and
production patterns;
13. Climate Action: Take urgent action to combat climate change and its impacts;
14. Life Below Water: Conserve and sustainably use the oceans, seas and marine
resources for sustainable development;
15. Life On Land: Protect, restore and promote sustainable use of terrestrial ecosystems,
sustainably manage forests, combat desertification and halt and reverse land degradation and halt
biodiversity loss;
 16. Peace, Justice, and Strong Institutions: Promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and build effective, accountable and
inclusive institutions at all levels;
17. Partnerships for the Goals: Strengthen the means of implementation and revitalize the
Global Partnership for Sustainable Development.
These goals are to be fulfilled by 2030.

DIFFERENCES BETWEEN MDGS AND SDGS

MDGs were created by a group of experts while SDGs were created by non-governmental organisations
and other stakeholders. MDGs have only 8 goals while SDGs have 17 goals.

THE UNITED NATIONS CLIMATE CHANGE CONFERENCE [UNCCC], 2004

The climate change conference held in 2004 had one specific agenda wherein there is a need to adapt to
the inevitable climate change. The developed and developing countries need to control their temperature
rise upto 5%.

THE PARIS AGREEMENT

This Paris Agreement was adopted by all the nations in the year 2016. It addresses two things:

- How does the climate change happen?

- What are the negative impacts of the climate change on mankind?

They aim to substantially reduce global greenhouse gases emissions in an effort to limit the global
temperature increase in this century to 2 degree Celsius above pre-industrial levels and to pursue efforts
to limit the temperature increase even further to 1.5 degrees Celsius. 

There are three aims:

- To limit global temperature rise by reducing greenhouse gas emissions;

- To provide a framework for transparency, accountability and achievement of more ambitious
targets;
- To mobilize support for climate change mitigation and adaptation in developing nations.

DIFFERENCE BETWEEN PARIS AGREEMENT AND KYOTO PROTOCOL

- In case of the Kyoto Protocol, it establishes the legally binding emission reduction targets which
includes the penalties for non-compliance for developed nations only. The Paris Agreement
requires all the countries to take efforts for the reduction of greenhouse gas emissions. Under
Paris Agreement, the countries can voluntarily set their reduction targets. No penalties shall be
imposed for non-compliance. Main aim of Paris Agreement is therefore monitoring, reporting and
reassessing either the individual target of the country or the collective target of the countries.
Further, the Agreement also set forth a requirement of announcing their next target which is to be
achieved in 5 years.

WHAT IS SOCIAL RESPONSIBILITY?

The responsibility of an organization for the impacts of its decisions and activities on society and
the environment, through transparent and ethical behavior that: Contributes to sustainable development,
including health and the welfare of society. The office of UN High Commissioner for Human Rights in
the year 2011 had set up three pillars to ensure the corporate responsibility is being fulfilled towards
promotion of human rights:

- Protect: State duty to protect against human rights abuses by third parties, including business,
through appropriate steps to prevent, investigate, punish and redress such abuse through effective
policies, legislation, regulations and adjudication;
- Respect: Corporate entities have a responsibility to respect human rights of others including
acting with due diligence to avoid violation of others’ rights as well as to address the adverse
impact with which they are involved;
- Remedy: There is a need for greater access to remedy for victims of business or corporate related
abuse, both, judicial and non-judicial remedies must be there.

G Sundarrajan v Union of India: The court observed that there is a close relationship between CSR and
sustainable development. “CSR and sustainable development are inseparable twins integrated into the
principle of intergenerational equity not merely human centric but eco-centric.CSR is envisaged as a
commitment to meet its social obligations by playing an active role to improve the quality of life to the
communities and stake-holders on a sustainable basis, preferably, in the project area where it is
operating.”

Banwasi Seva Ashram v State of UP:

HUMAN AT THE CENTRE FOR ENVIRONMENT PROTECTION

Environment was considered to be holy and they connected flora and fauna to God. As per
anthropocentric approach, human beings are kept at centre and all the other things revolve around the
human beings. If the Stockholm declaration or Rio declaration are considered, it could be observed that
people are at the centre of sustainable development. (Principle 6 of the Rio Declaration, 2012). This
collates with the anthropocentric approach.

Anthropocentric Approach
After Stockholm 1992, there were a lot of concerns with respect to the environment. When these
principles under the various conferences and conventions are read, it could be observed that the main aim
of the conferences has been sustainable development – preserving resources for the future generations
thus, human beings were at the centre of everything (Anthropocentric approach). This approach considers
the maintenance preservation and protection of the other components and natural things of the
environment as something essential for the existence of human beings.

- Principle 1 of Stockholm of Conference

- Principle 6 of Rio Declaration 2012

“We recognize that people are at the centre of sustainable development and in this regard we strive for a
world that is just, equitable and inclusive, and we commit to work together to promote sustained and
inclusive economic growth, social development and environmental protection and thereby to benefit all.”

Important cases:

All these cases were decided on the basis of anthropocentric approach.

MC Mehta v Kamal Nath [1997 SC]: First case where public trust doctrine was adopted;
 MC Mehta v Union of India [Taj Trapezium Case];
Oleum Gas leakage case.

SC also observed in the case of TN Godavarman v Union of India (SC, 2012) case, wherein anthropo-
centric approach was defined:

“Anthropocentrism considers humans to be the most important factor and value in the universe and
states that humans have greater intrinsic value than other species. Resultantly, any species that are of
potential use to humans can be a reserve to be exploited which leads to the point of extinction of
biological reserves. Further, that principle highlights human obligations towards environment arising
out of instrumental, educational, scientific, cultural, recreational and aesthetic values that forests have to
offer to humans. Under this approach, environment is only protected as a consequence of and to the
extent needed to protect human well-being. On the other hand, ecocentric approach to environment stress
the moral imperatives to respect intrinsic value, inter dependence and integrity of all forms of life.
Ecocentrism supports the protection of all life forms, not just those which are of value to humans or their
needs and underlines the fact that humans are just one among the various life forms on earth.”

MC Mehta v Kamal Nath:

Facts of the case:

One company, Span Motels Private Limited, wanted to get an approval for the construction of a motel, for
which the state government granted a lease for a forest land. The company ended up selling trees, use of
bulldozers, and other activities that interfered with the natural course of river which was not ideally
permitted to them.This was done so as to avoid potential floods in the river Beas which could harm the
motel. They had also taken control of the pieces of land that wasn’t ideally granted to them and had
started illegal construction on them.The construction was apparently legal because they were trying to
save the green vegetation in the area from potential floods. They never received permissions to do the
same but they received the same when Mr. Kamal Nath took control of his office. This permission
granted retrospective permission to all the illegal activities that had been done earlier. This encroachment
had a huge impact on the River Beas which led to the river changing its course the second time. This
caused floods and 105 cr worth property was destroyed.

Issues that were considered:

• Whether the court has wrongly inducted Mr. Kamal Nath as a Respondent in the present petition?
• Whether the construction activity carried out by the Motel Company justified?

Why was Kamal Nath brought in as a party? Because the shares in the company was wholly owned by his
family and he had a personal interest in this ‘dream project’.

Why personal liability? He utilized his public position for private gains, that is why personal liability shall
be accrued.

Arguments of the Respondents:

The respondent never disputed the fact that Mr. Kamal Nath’s family holds almost all the shares of the
Motel Company.With respect to the second issue, the respondents contended that the construction activity
was carried out by the Motel Company on a land under its possession with a view to protect the lease-
hold property.Further, the Divisional Forest Officer had also permitted the motel to carry out such
construction activitiessubject to the condition that the department would not be liable to pay any amount
incurred by the Motel Company for the said construction.

Judgment:

A suo motu action was taken and the public trust doctrine was applied. The Public trust doctrine is
essentially that the natural resources are ‘public goods’ and the government is just the trustee. Nobody
can have an exclusive entitlement to these resources as these resources are for all or for none. The Court
took action against the company and deemed the public as beneficiaries to the natural resources and
imposed a legal duty upon them to protect the resources.

“This theory relies on the principle that naturally occurring resources such as the air, water, forests, and
seas carry immense importance for all humans, and thus it is inexcusable to allow private ownership over
them. It further opined that the doctrine vested with the government, the duty to safeguard these
resources for the benefit of people as a whole and to prevent their use for commercial or private
purposes.”

The Apex Court also noted that the solution of this conflict is for the legislature to look for but in absence
of a legislation for the same, the administrative authorities according to the doctrine are, henceforth,
compelled to be the trustees of natural resources and ensure that their erosion is not permitted for
commercial, private or any other use unless the courts deem it necessary, in good faith, for the good of
and in the interest of the public to intrude upon such resources. In light of the above, the court held that
the Himachal Pradesh government committed a ‘patent breach of public trust’ by leasing out the
ecologically fragile land to the Motel Company Management and quashed the approval granted vide letter
dated November 24, 1993, and the lease deed dated April 11, 1994, in favor of the Company.

The court also further reiterated the principle of polluter pays, and had therefore instructed the Motel
company to make payment for the restoration of the ecology of the region. The National Environmental
Engineering Research Institute [NEERI] was instructed to scrutinize the area and, if required, provide a
report of the approximate cost of reversing the environmental degradation caused.

ENVIRONMENTAL ETHICS
Environmental ethics play an extremely important role in visualizing and studying environmental law.
Two basic questions:

- What is important in environment?

- How and why is it important to study environmental law?

Role of Environment in one’s life: Life and sustainability is in place only because of environment. Human
existence is possible only because of environment. Human beings’ lives are in danger now which is why
sustainable development was addressed in the Stockholm conference.

ANTHROPOCENTRIC APPROACH
- Anthropocentrism’s see hierarchy in natural order, wherein the place of humans they find above
all of the species.
 - Humans are the only beings seen as intrinsically valuable; other beings and environment can have
only instrumental value.
- An ontological divide between humans and other nature.
- Therefore, the basis of this environmental ethics is the human needs and protection for the
exploitation of the natural resources.
- It allows to some extent the exploitation of natural resources and pollution as the activity in
question does not causes irreversible harm or amount to hazardous activity

STAGES OF DEVELOPMENT OF ENVIRONMENTAL LAW FROM ANTHROPOCENTRIC TO ECO-CENTRIC

APPROACH
Stage I: Human self-interest is the main reason for environmental protection as the existence of human
beings without environment is impossible.

Stage II: Treaties for future generations. Treaties were entered by different nations for the protection and
preservation of the environment for future generations and not just for present generation. It was not
looked at from the perspective that environment protection was upheld because there is a need, but rather
was looked at from a selfish perspective favouring the human beings.

Stage III: Recognition of Nature’s rights

- In 2017, the Uttarakhand High Court ruled that the Indian rivers Ganga and Yamuna, the
Gangotri and Yamunotri glaciers, as well as other related natural elements are “legal persons”
with all corresponding rights, duties and liabilities of a living person. Subsequently, in 2018, the
same High Court ruled that the entire animal kingdom has rights equivalent to that of a living
person.
- As recently as March 2020, the Punjab and Haryana High Court passed an order declaring the
Sukhna Lake in Chandigarh city as a living entity, also with rights equivalent to that of a person.
– This is the eco-centric approach, where the general masses have started recognising the living
existence of natural resources.

Why were these rights extended to these natural resources? OR Why has there been a change from the
anthropocentric approach to ecocentric approach?

1. It is prudent to protect and preserve the vegetation species and species of fauna, which will
ultimately lead to the protection and preservation of human beings;
2. It has been realised that much has been done in the form of legislative and administrative actions,
in a generalised way, to guard the natural resources. But this was not found sufficient to
safeguard various species of flora and fauna which are on the verge of extinction or are
vulnerable for extinction.

Therefore, the approach has shifted from human beings being considered superior to environment to one
where they are a part of the environment and therefore need an equal level of protection.

DOCTRINES OF INTERNATIONAL LAW RELATED TO NATURAL RESOURCES: (OUT OF COURSE)

All humans or mankind have a right over nature. Nature is considered as a natural gift to the mankind.
Besides taking food and shelter from resources, we also started taking minerals etc. from nature post
industrialization. The harmony between people and nature got disturbed.
  Doctrine of conquest: Whoever used to conquer a land (or other natural resource) was considered
as the owner of that particular land;
 Doctrine of discovery;
 Doctrine of occupation – whoever occupies. Island of Palmers - a case supported by discovery is
incomplete until it is supported by occupation – terra nullis;
 Doctrine of adverse possession;
 Treaty of bilateral contracts;
 Doctrine of sovereignty;
 Doctrine of distributive justice with respect to utilization of natural resources;
 Principle of compensation and rehabilitation to the victim of environmental activity.
Compensation that is to be paid is the fair market value.

VARIOUS INTERNATIONAL LAW PRINCIPLES

 Principle of sustainable development
 Principle of co-operation
 Precautionary principle
 Polluters Pays Principle
 Principle of preventive action
 Principle of common but differentiated responsibility
 Doctrine of public trust – Government is the trustee and public are beneficiaries of a public
property.

There was a drawing competition - 2 sets of people were participating (kids and adults) – first adults were
allowed to paint and draw nature on canvas – after that, kids were asked to draw and paint using the same
set of colors. At the end of the day, when pictures of these were compared, kids only had a black and gray
because all the beautiful colors were used by the parents – leaving nothing for children. Kids' lives can't
be beautiful if adults don’t use their resources wisely.

31/08/2020

Human Development and growth is based on environment and environmental interaction. New human
activities gave rise to situations where resources were being used at a faster rate than their rate of
replenishment. This resulted in an exhaustion and an imbalance in the cycle of nature.

THREE PILLARS OF SUSTAINABLE DEVELOPMENT

- Environmental protection and preservation
- Economic growth
- Social equality

Section 20 of the NGT Act, 2012 says that, “The Tribunal shall, while passing any order or decision or
award, apply the principles of sustainable development, the precautionary principle and the polluter pays
principle.”

WHAT IS PRECAUTIONARY PRINCIPLE?

Principle 15 of the Rio Declaration says that a lack of scientific know how is not a ground for the states to
degrade the environment. “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 idea herein is to be better safe than sorry. The
Biological Diversity Convention, 1992 and the Cartagena Protocol on Bio-Safety, 2000 were few
multinational agreements on precautionary principle.

1. Vellore Citizen Welfare Forum v Union of India: There was a petition filed by the Forum under
Article 32, considering the large pollution that the discharge from the tanneries were causing to
the rivers. The tanneries justified that it boosted economy and gives employment.
- Vellore citizens: Huge pollution caused where untreated effluents were released in the river
which was used for drinking and bathing by the people.
- TN Agri Research Institute: Lots of land got infertile because of the discharge. 35,000 hectares of
land became unfit for cultivation.

The SC analyzed the relationship between economic development and environment and addressed if the
tannery could operate at the cost of life. SC came up with harmony that tanneries are important for
foreign exchange and employment but they have caused a hazardous situation for the people and therefore
ruled in the favour of the petitioners.

It emphasized on the ‘green branches’ in India which would concern the speedy disposal of
environmental law cases. The court also held that both pollution and protection are a part of law. All three
principles are exceptions here. These principles are derived from different Acts like Water Pollution Act
and are a part of International Law. The Constitutional and statutory provision protect a person’s right to
fresh air, clean water and pollution free environment, but the source of the right is the inalienable
common law right of clean environment.

2. MC Mehta v Union of India (Taj Trapezium case): A WP was filed in the year 1984 against the
adverse effect of industry and vehicle on the area surrounding Taj Mahal. The Vardharajan
Committee report was referred to which discussed the impact of Mathura refinery in 1978. The
Committee report said that the pollution from the power plant is causing damage to monument
and the environment.

The Court said that since Taj Mahal is of international importance and brings in revenue to the economy,
the beauty of the same must not be compromised. In this case, the court interpreted the principle of
polluter pays’ and the precautionary principle. It said that the municipal law means that environmental
measures by the government and the state authorities must anticipate, prevent and attack causes of
environmental degradation. In a situation where an irreversible damage has been made, the onus is on the
industrialist or the actor to show that the action was environment friendly.

Case Laws:
1. Calcutta Tanneries case, 1997.
2. Kanpur Tanneries case, 1988.
WHAT IS PREVENTIVE PRINCIPLE?
The main aim of this principle is to prevent environmental damage which might hinder the efforts that
have been taken to reduce/limit/control action. The aim here is to prevent damage and to limit, reduce or
control the same. The state is responsible to ensure that harm has been prevented. This was drafted in
response to prevent environmental harm. The Basel Convention is based on this principle. The preventive
principle is the fundamental notion behind laws regulating generational storage, transport treatment of
hazardous waste and regulated use of pesticides.

1. Gabcikovo-Nagyamaros case: An agreement existed between Hungary and Slovakia for the
creation of locks on some river. Hungary said that there is a serious risk to their environment and
therefore abandoned the project, because the project would have also led to a hindrance to the
water supply in Budapest.

The court opined that it is essential to protect environment when there is an irreversible harm. But also
opined that there is no trouble as far as Hungary’s concern is there. Both parties need to look at this from
an environmental aspect and find a satisfactory outcome.

2. Ajeet Mehta v State of Rajasthan, 1989.

A petition was filed by a person with respect to pollution caused in the locality by stocking/loading of
fodders. The particles of the same caused air pollution as the smoke of the same would cause dangerous
implications to the health of the people. This business caused health threats (physical discomfort and lung
diseases) and must be closed. On a revision petition, the court ordered the removal of stock within 6
months.

The court clarified in the case of MC Mehta v Union of India that mining in scientific development comes
with the concept of balanced mining. Balancing of mining with environment protection and banning it are
two different sides of the same principle of precautionary principle.

FIVE KEY ELEMENTS FOR PRECAUTIONARY PRINCIPLE [DO NOT KNOW WHAT HAPPENED
TO THIS]
- Alternative assessment: To see whether option chosen is the best suitable one and if not choose
the option which shall have less impact. This alternative essentially points at doing absolutely
nothing.
- Right to Know: If the plan has started, the community has the right to know how it affects them
and the environment. For example, mobile tower in residential areas. It must be ensured that the
tower radiation rules have been adhered to. Burden is on the project holder to assess what are the
risks that are involved.

Case Laws:

1. Govind Singh v Shanti Swaroop: There was a bakery, the chimney smoke of which caused
pollution and hence the bakery was shut down, considering the prevention principle. Under
prevention principle, the harm must be prevented before it takes place. When there is a suspicion
about environmental harm in future, this principle is applied.

“If strong suspicion that some environmental harm is caused, then it is better to control it rather than
causing the harm.”

DIFFERENCE BETWEEN PREVENTIVE AND PRECAUTIONARY PRINCIPLE

Preventive Principle Precautionary Principle
State authority must prevent. If notion about threat to the environment, then precautions
must be taken beforehand.
 Post activity, if the harm is done, more EIA must be done.
harm must be prevented.
POLLUTER PAYS’ PRINCIPLE
It is also known as the Extended Producer Responsibility Principle. Since there are revolutions taking
place, this poses more burden on the environment.  Under this principle, the people responsible for
causing pollution will have to pay damages to restore the environmental condition. This was initially
applied and recognized by the OECD nations in 1970. The person causing the environment owes the
liability to compensate. Later, this principle was recognized under Principle 16 of Rio Declaration as –
“national authorities should endeavour to promote the internalization of environmental cost and use of
economic instrument.”

“Internalization of environmental cost”- charging a polluter of all the cost that his activity created for
other persons. The principle includes 2 things: -

- the polluter should pay for the administration of the pollution control system; and
- polluter should pay for the consequences of the pollution. The polluter will pay for injuries
caused to the victims.

If NOC, EIA protocols or any other precautionary measures are not followed, the polluter will have to pay
for any violation of such protocols or harm caused to the environment. The government will not bear any
damages. From preventing the damages till the remedial recourse, the polluter will pay for everything.
This creates responsible behavior.

1.   Indian Council for Enviro Legal Action v. Union of India (2011)

In this case, the polluter pays principle was applied for the first time.  The court said that the polluter pays
principle demands that the financial cost of preventing or remedying the damage caused by pollution
should lie with the undertakings which caused the pollution or produced the goods which caused the
pollution. Under the principle, it is not the role of the government to meet the costs involved in either
prevention of such damage or carrying out remedial action.It was also stated that govt. will not bear the
cost because the effect of this would be to shift the financial burden of the pollution incident to the tax
payer. The principle was first promoted by the OECD countries during 1970s. When there was great
public interest in environmental issues, there were demands on governments and other institutions to
introduce policies and mechanism to protect people from threats of industrialization. They introduced
polluter pays principle during that time. Stockholm Conference took place in 1972, although it does not
mention anything about polluter pays principle. It took 20 years to recognize this principle, which was
done in the Rio Declaration, 1992.Sections 3 and 5 of the Environment Protection Act mentions the
mechanism of how the Central Govt. has the power to give directions.Bhopal gas tragedy also involved
the principle but they did not completely recognize this principle.

2.   S. Jagannath v. Union of India (Shrimp Farming Case)

This case brought into force for the first time the non-implementation of the CRZ notification. Though the
notification was enacted, it was never brought into force and the petitioner filed this writ for stoppage of
intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas and for
prohibiting use of wastelands and wetlands for prawn farming. The petitioner also sought for the
constitution of a National Coastal Zone Management Authority to safeguard the marine and coastal areas.
The allegation of the petitioner was that the coastal states were allowing big business houses to develop
prawn farms on a large scale in the coastal States in violation of the EPA, 1986 and various other
provisions of law.  The Court ordered NEERI to visit the coastal states of Andhra and Tamil Nadu and
give its report on the status of farms set up in the said areas. The report submitted indicated that due to the
impact of aquaculture, the environment was adversely degraded. The impact was on surface water,
contamination of soil and ground water and destruction of mangrove vegetation.

PRINCIPLE OF EQUITY AND EQUALITY

Sustainability with respect to the environment can be attained only though this principle. In the case of
M.C. Mehta v. Kamal Nath, it was held that no one has absolute ownership over natural resources. As per
this principle, common ownership of resources and their equitable distribution is the fundamental tenet
behind the welfare of a society. No one can have absolute ownership over any resource. Equity - There
should be a minimum standard below which the quality should not fall.

Objectives:

 To meet the needs of present without compromising the ability of the future generations to meet
their own needs;
 To provide fair treatment: This refers to respecting the rights of non-human living organisms -
those who are sentient but do not have a voice (shift from anthropocentric to eco-centric
approach);
 To persuade individual not to negatively affect the health and rights of another person.
 To guarantee equitable access to natural resources and the equitable dist of socio eco benefits
from the use of natural resources depending upon the availability of the right to use resources;
  To safeguard the vulnerable sections during development. There are certain communities that
directly depend on natural resources, for e.g. dependence on forest wood, pasture lands for
grazing, water, etc. if there is environmental degradation, it will negatively impact the right to life
of these vulnerable sections;
 To guarantee a fair allocation of resource rights so that it would result in individuals and
communities cooperating in the collective management of the resources.

Article 39 of the Indian Constitution provides for adoption of a policy by the State for sustainable
development. State is considered to be the legal owner and trustee of its people and basically, because of
this particular obligation, the state must ensure that the process of distribution is guided by the doctrine of
equality and equity. Article 39(b) directly talks about resources. Article 39(c) is also relevant in this
context.

1. Hinchlal Tiwari v. Kamla Devi (2001, SC )- It is important to notice that the material resources of
the community like forest, tanks, ponds, mountain, hillocks etc. are nature’s bounty. They
maintain a delicate ecological balance. They need to be protected for a proper and healthy
environment which enables people to enjoy a quality life which is the essence of the guaranteed
right under Article 21 of the Indian Constitution.

2. Centre for Public Interest Litigation (CPIL) and Ors. v. Union of India (2012) - Definition of
natural resources (para no. 63)–“At the outset, we consider it proper to observe that even though
 there is no universally accepted definition of natural resources, they are generally understood as
elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are
thought of as the individual elements of the natural environment that provide economic and
social services to human society and are considered valuable in their relatively unmodified,
natural, form. A natural resource's value rests in the amount of the material available and the
demand for it. The latter is determined by its usefulness to production. Natural resources belong
to the people but the State legally owns them on behalf of its people and from that point of view
natural resources are considered as national assets, more so because the State benefits
immensely from their value. The State is empowered to distribute natural resources. However, as
they constitute public property/national asset, while distributing natural resources, the State is
bound to act in consonance with the principles of equality and public trust and ensure that no
action is taken which may be detrimental to public interest. Like any other State action,
constitutionalism must be reflected at every stage of the distribution of natural resources.
In Article 39(b) of the Constitution it has been provided that the ownership and control of the
material resources of the community should be so distributed so as to best sub-serve the common
good, but no comprehensive legislation has been enacted to generally define natural resources
and a framework for their protection. Of course, environment laws enacted by Parliament and
State legislatures deal with specific natural resources, i.e., Forest, Air, Water, Costal Zones,
etc.”

3. Nagesh v. Union of India (1993)- In its initial stage, the Directive principles were approached,
considered and treated in a pure legalistic approach but there have been cases pointing to bold
steps towards a social welfare concept of the state in an era of judicial activism giving new
dimension to the directive principles. Article 39(b)- the word “distribution” must be liberally
construed to ensure equitable distribution.

The principle of equity emphasizes the importance of good governance, redistribution of income and
wealth, empowerment, participation, transparency and accountability.

PUBLIC TRUST DOCTRINE

 M.C. Mehta v. Kamal Nath
 Madison v. Duck Town Sulphur Companies
 Georgia v. Tennessee Copper Company
  M.I. Builders v. Radhe Shyam Sahu (1999)
 Jamshed Wadia v. Board of Trustee, Port of Mumbai (2002) - State’s action and the action of its
instrumentalities or agencies, must be for the public good achieving the objectives for which they
exist and should not be arbitrary. In the context of designing contracts, they should design their
activities in a manner which would ensure competition and non-discrimination and they can
augment their resources but the object should be to serve the public cause and to do public good
by resorting to fair and reasonable methods.

INTER-GENERATIONAL EQUITY
It refers to the equity between the generations which includes the need of the future generations in the
designing and implementation of current policies. It emphasizes the duties of present generation towards
the future generations.  It is derived from the idea of Immanuel Kant- posterity benefits from the works of
the ancestors. Coming generation must get benefits from the work done by the ancestors.

1. State of H.P. v. Ganesh Wood Products- recognized the principle of sustainable development and
inter-generational equity.
2. Rural Litigation and Entitlement Kendra v. State of U.P. (1987)- environmental assets are perm
assets of mankind.
ABSOLUTE LIABILITY V STRICT LIABILITY
The Law decides the rights and liabilities of the parties, through a set of rules. Through the case of
Rylands v Fletcher, the rule of strict liability was carved out. There is no requirement of escape of
dangerous thing under absolute liability. Absolute liability rule shall be applicable also to those who are
injured within the premise and person outside the premise. The area that a gas leak can cover will be
larger than in the case of a reservoir.

As per this rule, if a party is in possession and is responsible for the upkeep of a hazardous substance,
then they have a strict liability if any hazardous activity is carried out. There are certain exceptions under
strict liability, while there are no exceptions under absolute liability. In the case of Union of India v
Prabhakaran Vijay Kumar, absolute liability is not subjected to any exceptions.

The case of MC Mehta v Union of India laid down the foundation for absolute liability in India.

1. MC Mehta v Union of India (Oleum Gas Leak)

One unit of Shriram Manufacturing malfunctioned and caused a Gas Leak. This caused the death of an
advocate. The court shifted its approach from strict liability to absolute liability, the reasons for the same
are:

- Most of the land in India are agricultural land and therefore the case of Ryland v Fletcher shall
not be relied on, as it dealt with the construction of reservoirs;
- As the industrial growth is at a higher pace, this remedy will not serve the purpose of industrial
development.
- It is a very old law, when the pace of industrial development/economic condition of the country is
taken into consideration along with the development of the law.

Difference:

- No exceptions for absolute liability, while there will be exceptions for strict liability.

If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law
must presume that such permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such hazardous or inherently dangerous activity as an appropriate item of its
overheads.

The rule in Rylands v. Fletcher laid down a principle of liability that if a person who brings on to his land
and collects and keeps there anything likely to do harm and such thing escapes and does damage to
another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of
the land and it does not apply to things naturally on the land or where the escape is due to an act of God
and an act of a stranger or the default of the person injured or where the thing which escapes is present by
the consent of the person injured or in certain cases where there is statutory authority. This rule evolved in
the 19th century at a time when all these developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms
and the needs of the present day economy and social structure. In a modern industrial society with highly
developed scientific knowledge and technology where hazardous or inherently dangerous industries are
necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule
merely because the new law does not recognise the rule of strict and absolute liability in case of an
enterprise engaged in hazardous and dangerous activity. Under strict liability, even potentially or per se
hazardous institutions were not involved. Absolute liability will fall only on those enterprises which are
involved in activities associated with hazardous substances or inherently dangerous activity.

An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory and residing in the surrounding areas
owes an absolute non-delegable duty to the community to ensure that if any harm results to anyone, the
enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous
activity must be conducted with the highest standards of safety and if any harm results on account of such
activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that
the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part.
If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law
must presume that such permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the
resource to discover and guard against hazards or dangers and to provide warning against potential
hazards.

DEEP POCKETS THEORY

The measure of compensation in such kind of cases must be co-related to the magnitude and capacity
of the enterprise because such compensation must have a deterrent effect. The larger and more
prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm
caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by
the enterprise.

1. Charanlal Sahu v. Union of India (1990, SC)- The above rule was reapproved. The rule of
absolute liability is absolute and non-delegable and the enterprise cannot escape liability by
showing that it has taken reasonable care and that there was no negligence on its part. The basis
of this rule is that if an enterprise is permitted to carry on a hazardous or inherently dangerous
activity for its profit, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident arising on account of such hazardous or inherently dangerous
activity as an appropriate item of its overhead and the enterprise alone has the resource to
discover and guard against the danger and to provide a warning against potential hazards.
Indemnification of all the persons who suffered the harm is also involved.

2. Bhopal Gas Tragedy- Union Carbide Corporation v. Union of India (1991)

Facts: The Union Carbide (India) Ltd. (UCIL), a sister concern of Union Carbide Corporation (UCC),
owned and operated in Bhopal, was a plant manufacturing pesticides. One of the ingredients used in the
composition of pesticides was Methyl Isocyanate (MIC) which is considered to be the most toxic
chemical in industrial use. On the night of 2nd December, 1984, there was escape of MIC from the tanks
in which it was stored. The fumes blew into the hutments surrounding the plant premises affecting the
residents and also the flora and fauna. About 4000 people lost their lives and the health of tens of
thousands of people was affected in various degrees of seriousness. This catastrophe not only left the live
human beings, flora and fauna victimized it also injured the babies in the womb. The residents of Bhopal
are suffering even today due to this ghastly catastrophe that happened due to the negligence of a
multinational company.

To provide speedy justice to the victims, the Union of India immediately enacted the Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 making the Union of India representative of the victims by the
virtue of Doctrine of Parens patriae. However, the validity of this act was challenged in Supreme Court on
the ground that since the Union of India was also owner of minority shareholders, they are also
responsible for the disaster. However, the court by applying CharanlalSahu v. Union of India, ruled in
favor of the Union of India and held that the state is obligated to protect the interests of its citizens across
the globe. The court further held that our Constitution makes it imperative for the state to secure to all its
citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and
secure their rights, the state must come into picture and protect and fight for the rights of the citizens.

The Union of India decided to litigate in an American court, however, the court at once dismissed the
case on the grounds of forum non conviniens.Therefore, in September 1986, Union of India initiated
proceedings against Union Carbide in Bhopal District Court. The District court asked Union Carbide to
deposit as sum of 350 Million as interim compensations. Union Carbide went into appeal in High Court &
the court reduced the sum to 250 Million. Finally, Union Carbide reached Supreme Court. The Supreme
Court ordered Union Carbide to pay US $470 million. This settlement was way less than the promised
amount by the government and also various jurists considered it to be an inappropriate compensation.

Therefore, the legal validity of this settlement was challenged in Union Carbide Corporation v. Union of
India. The petitioners in this case argued that the drop of criminal proceeding against Union Carbide was
illegal and the amount of compensation was inappropriate to the injury that the disaster had caused. In
this case the majority opinion was given by Justice Venkatchaliah. The majority opinion directed that the
quashing of criminal proceedings against Union Carbide was not justified and held that the criminal
proceedings must be initiated. On the point that whether such compensation is adequate or not the
majority bench held that the said compensation is adequate, reasonable and fair and in case any deficiency
arises in money for rehabilitation, such money shall be tendered by the Union & State government. On
this point Ahmadi J. dissented with the majority that when Union of India is not even remotely connected
to the MIC leak in UCIL then how it could be made liable to pay the damages. In his opinion any
deficiency that may arise in rehabilitation of victims must be tendered by Union Carbide as applying the
formula of Rylands v. Fletcher.

MEANING OF COMMON BUT DIFFERENTIATED RESPONSIBILITY

This was in relation to climate change. When the entire world was dealing with the problem of climate
change, this word emerged for the time in UNFCC where it was said that the development requires a
notable increase of energy access and usage all across the world but the issue is that due to this particular
requirement this comes at a great cost to the environment and the climate. Even though development is
one need, another urgent need is that how these developmental changes are hampering the environmental
conditions.

Principle 7 of Rio Declaration - States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions
to global environmental degradation, States have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global environment and of
the technologies and financial resources they command.

Because of the pace of economic development which is different in different countries, the common
problem is faced by the entire world but the degree of responsibility shared would be different. CBDR
states that the global nature of climate change calls for widest possible cooperation by all countries and
their participation in an effective and appropriate international response in accordance with their common
but differentiated responsibilities and respective capabilities and their social and economic condition.
Climate change is a common problem but it gives different responsibilities to different stakeholders. The
countries were divided into developed, developing and least developed countries wherein the developed
countries had a greater mitigation role to play.
 
INTER-GENERATIONAL AND INTRA-GENERATIONAL EQUITY
Inter-generational equity is related to sustainable development. It refers to the equity between generations
which includes the need of the future generation. Policies must be such that resources are utilized in a
wise manner in such a way that resources are preserved for the future generation. It is kind of a trust.
Present generation is considered as a trustee for the future generations. Thus it is related to sustainability
of the resources and the needs and requirements of the future generations. There are two components to
this:

 Fair utilization of resources - fair use between past, present and future. There must be a balance
between consumptive demands of the existing society and ensuring availability of adequate
resources for the future generations to meet their needs
 Intra generational equity - the utilization of the resources must be done fairly by the members of
the present generation both at the domestic and global level.

There are three principles forming basis of Inter-generational obligations and rights, Planetary rights and
obligations and rights and responsibilities derived from each generation (principles of inter-generational
equity). They are:

 Principle of conservation of options- each generation is required to preserve the diversity of the
natural and cultural resources so that it does not restrict the options available to future generations
in solving their problems and satisfying their values and should also be allowed to diversity
comparable to that enjoyed by previous generations.
 Principle of conservation of quality- it means each generation should be required to maintain
the quality of the planet so that it is passed on in no worse condition than in which it was received
and each generation should also be entitled to planetary quality enjoyed by previous generations.
  Principle of conservation of access- each generation should provide its members with equitable
rights of access to the legacy of past generations and should conserve this access for future
generations.

Lacuna: It does not explain how many future generations are to be included. It does not place a bar.
Some of the flora and fauna became extinct due to natural changes in the environment and not due to the
activities of mankind. It does not provide clarity on how to preserve those species or resources. Therefore,
they do not talk about how long they must be extended.

 State of H.P. v. Ganesh Wood Products- recognized the principle of sustainable development and
inter-generational equity.
 Rural Litigation and Entitlement Kendra v. State of U.P. (1987)- It is always to be remembered
that environmental assets are permanent assets of mankind and are not intended to be exhausted
in one generation.Assimilative Capacity Approach- Prior to the Stockholm Conference, the
perspective was that Earth or Mother Nature had the “assimilative capacity” to resolve
environmental issues on its own. Nature can absolve the ill effects causes to the environment.

MOVING TOWARDS THE PROACTIVE APPROACH

“Reactive approach” (something between the assimilative capacity approach and the proactive approach)
- When the impact of a particular activity such as emission of hazardous substances is not completely
clear, then the general presumption is that the activity can be allowed to continue until the uncertainty is
absolved completely.

Precautionary principle counters this general presumption. It gives its counter argument. It says that when
there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to
anticipate and avert environmental harm. The precautionary principle is inclined towards monitoring,
preventing and/or mitigating uncertain potential threats. We don’t wait for the threat to happen and we
apply the precautionary principle by being more aware. It focuses on careful planning so that risks could
be avoided. EIA is also based upon precautionary principle.

1. A.P. Pollution Control Board v. Prof M.V. Naidu (1999 SC 812) - This cases traces the evolution
of the precautionary principle. The court observed that the earlier approach concentrated on the
assimilative capacity approach as reflected in Principle 6 of Stockholm Declaration, 1972.   The
said principle assumed that science could provide policy makers with the information and means
necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it
presumed that relevant technical expertise would be available when environmental harm was
predicted and there would be sufficient time to act in order to avoid such harm.But in the
11th principle of World Charter for Nature, 1982 and Principle 15 of Rio Conference 1992, the
emphasis shifted on the precautionary principle. It had turned the burden of proof. Initially, the
person claiming that harm was being caused or the one who asserted had the burden to prove.
Later, the burden of proof shifted to a Reverse Burden.

MODULE III: CONSTITUTIONAL LAW AND ENVIRONMENTAL LAW

This will be divided into two parts:
 - Preamble and the Centre State relations: This deals with what does the Preamble talk about.
- Fundamental Duties

Constitution of India is considered as a living document. It did not really have provisions dealing with
environment protection. Due to economic progress, there were challenges that came up in India with
respect to the environment, thereby leading to inclusion of environmental protection in the Constitution.

1. Preamble and the Centre State Relations:

-------Incomplete Notes-----------------

Union and State Relations: Power has been divided between the Union and the State government. The
Parliament has the power to make laws for the whole country while the State Legislature has the power to
make laws specific to the States. There are number of areas in which India could be divided into where
some people have access to and some don’t. There are different rules and laws that are applicable to these
different areas. There are certain matters which are of national interest but are mentioned as a part of the
State List. The Water Prevention and Control of Pollution Act, 1974 was enacted by the Central
Legislature after taking the consent of the States. International Conventions are also the reason why such
Acts are enacted in our country.

2. Fundamental Duties: As per the 42nd Amendment, certain Fundamental duties and
fundamental rights were introduced that focused towards environment protection and
preservation. Article 51A(g) of the Indian Constitution mentions the fundamental duty of the
citizens to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures.
- LK Koolwal v State of Rajasthan (1988): There was a problem of sanitation in the city of Jaipur,
which was hazardous towards Rajasthan. The Court said that the Municipality failed to discharge
its duty towards environment protection. “We can call Article 51A ordinarily as the duty of the
citizens, but in fact it is the right of the citizens as it creates the right in favour of the citizen to
move to the Court to see that the State performs its duties faithfully and the obligatory and
primary duties are performed in accordance with the law of land.Omissions or commissions are
brought to the notice of the Court by the citizen and thus, Article 51A gives a right to the citizen
to move the Court for the enforcement of the duty cast on State, instrumentalities, agencies,
departments, local bodies and statutory authorities created under the particular law of the
State.”
- Kinkri Devi v State: In this case, it was held that it is both constitutional pointer to the state
and the constitutional duty of the citizens not only protect the environment but also improve it
and to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all
other water resources of the country. The neglect or failure to abide by the pointer or to perform
the duty is nothing short of a betrayal of the fundamental law which the State and, indeed, every
Indian, high or low, is bound to uphold and maintain.
- MC Mehta v State of Orissa: In this case, it was held that right and duty co-exists. There cannot
be any right without any duty and there cannot be any duty without any right.
- Sitaram Chhaparia v State of Bihar (2002): In this case, public interest litigation was filed by
residents of a locality against a tyre retreading plant emitting carbon dioxide gas and other
obnoxious gases from its furnaces causing harm to the environment of the locality. The Court
 held that protecting the environment is a fundamental duty now under Art. 51A of the
Constitution and accordingly the respondents were directed to wind up their industry.
- Abhilash Textiles (Already Discussed): The Court held that notices asking the petitioners to stop
discharging the effluents from the factory on a public road or drainage having the natural
environment on pain of closing the factory are valid.
- Ratlam Municipality v Wardhichand: The residents of a locality within limits of Ratlam
Municipality tormented by stench and stink caused by open drains and public excretion by nearby
slum-dwellers moved the Magistrate under S.133 of the CrPC to require the Municipality to do its
duty to towards the members of the public. The Court directed the Municipality to remove dirt,
filth, etc., from the city within the period of six months. The Court made it clear that it is not the
duty of the court to see whether the funds are available or not. It is the duty of the administration
and municipal council to see that primary duties are fulfilled.

Detailed Facts of the Case:

Both the prosperous and poor people of New Road, Ratlam were victims of extremely inadequate basic
public sanitation facilities, fluid discharge of a local alcohol plant and overflow of storm water to the
street. This resulted in various types of septic fluids flowing openly and constantly in the street, and
consequently the street’s sanitation was extremely poor to the point where the conditions were unlivable.

Under § 123 of the Madhya Pradesh Municipalities Act 1961 (M.P.M.A.), the Municipal Council was
required to “undertake and make reasonable and adequate provision” for services, including keeping
public places clean, removing rubbish and abating nuisances.

Furthermore, the Magistrate’s Court, under § 133 of the Criminal Procedure Code (Cr.P.C.) had the
authority to direct the removal of public nuisances. Additionally, under § 188 of the Indian Penal Code
(I.P.C.) the Magistrate’s Court may order imprisonment for any breach of a court order which causes
danger to human life health or safety. After the people of Ratlam’s complaints to the Municipal Council
went unheeded, the Respondents sought, and were awarded, an order from the Sub Divisional Magistrate.

The order compelled the Municipal Council to construct an adequate drainage system to reduce and
manage septic and other liquid waste whilst also ordering DDT spraying to control the threat of Malaria,
all to be completed within specified time limits. In the Sessions Court, the Municipal Council claimed its
financial resources were inadequate to comply with the order; on this basis the Magistrate’s order was set
aside.

The High Court upheld the Magistrates Order. On appeal, the Court upheld the High Court’s decision and
further ordered the alcohol plant outflows stop, and that public latrines be installed with adequate ongoing
maintenance.

Judgment Analysis:
The Court held that the Respondents had standing in the matter. At the heart of the matter was a public
health issue and the legal responsibility for it. Standing was thus based on the interests of social justice in
Indian society referenced from the Constitution, particularly the Preamble and Article 38.
The Court held that the Municipal Council was obliged to take responsibility for the conditions of New
Road, which were found to be a public nuisance. This was the result of a combination of two laws:

 The Municipal Council’s duty as stipulated in § 123 M.P.M.A.

 The authority of the Magistrate’s court to make orders concerning public nuisances as detailed in
§ 133 Cr.P.C. (with the threat of punitive enforcement in § 188 I.P.C.).

The Municipal Council’s legal obligations included providing adequate public latrines, filling in the
cesspools, stopping the flow of effluent, and spraying potential malaria infestation.

The Court rejected the Municipal Council’s argument that financial constraints prohibited it from obeying
the Magistrate’s order. The Court held that the Municipal Council could not “run away from its principal
duty by pleading financial inability” and that “decency and dignity” were “non-negotiable facets of
human rights” which constituted a “first charge on local self-governing bodies.” The Court held that
sanitised public places should not be at the risk of a “self-created bankruptcy” or a “perverted expenditure
budget.”

The Court held that it had the authority to require the Municipal Council to adopt a specific scheme
toward meeting its obligations under the order. Justification for “affirmative action on a time-bound
basis” was on the basis of the severe circumstances, such as the significant lack of managing malaria
concerns. Therefore, the Court was obliged to behave as more than a mere “umpire” or ‘“adjudicator.”

The Court selected one of the three schemes presented by expert engineers from both the Applicants and
Respondents, which presented a balance between realizing the Municipal Council’s statutory duties, and
acknowledging it’s financial and time constraints.

To further manage the financial demands of the orders, and in accordance with the directive principal of
improving public health enshrined in Article 47 of the Constitution, the Court directed the State
Government of Madhya Pradesh to lend the necessary funds to the Municipal Council.

DEFINITION OF ENVIRONMENT LAW

Everything except me is environment. Environmental Law is a collection of laws, regulation, agreements
and common law that governs how humans interact with their environment. The purpose of
environmental law is to protect the environment and create rules for how people can use natural
resources.Environmental laws not only aim to protect the environment from harm, but they also
determine who can use natural resources and on what terms. Laws may regulate pollution, the use of
natural resources, forest protection, mineral harvesting and animal and fish populations.

Rodgers defines environmental law as the law of planetary housekeeping protecting the planet and its
people from activities that upsets the earth and its life sustaining capacities. Environmental law includes
the management of environment and strategies for tackling problems affecting the environment.

What are the crises happening in the Environment, leading to the Environmental Law?

1. Greenhouse Gases
2. Ozone Layer Depletion – CLC gases cause this
3. Degradation in the Air Quality
4. Degradation in the Water Quality
 5. Land Contamination: This includes chemical contamination, plastic that cannot be untreated.
Dumping of radioactive substances also.
6. Soil Degradation

Reasons for the Crises:

1. Urbanisation: Can lead to shortage of water to drink, inadequate sanitisation, gives rise to
poverty, inadequacy of resources.  For instance, the first Millenium Development Goal was
poverty eradication. Also, leads to food insecurity. Malnutrition, lack of balanced diets 
2. Oil and Energy Security is a big challenge 
3. Displacement - people forced to leave their own original habitat to other places due to
environmental effects- people fleeing from environmental crises. 
4. Natural Disasters- happening due to excess pressure on the environment.

Laws that have a scope for Environmental Protection:

- General Laws – Environment Protection Act and the Rules

- Specific Laws – Laws relating to Forests, Wildlife, Hazardous Substances, Water, Air.

Cases dealing with Public Nuisance:

- Ramraj Singh v Babulal: In this case, the defendant had created a stone crushingmachine,
adjoining the plaintiff’s house. The plaintiff was a medical practitioner, and therefore the dust
which the machine generates harms the environment. Moreover, the dust so generated enters the
consulting chambers which are being inhaled by the plaintiff itself and also patients. It was held
that the plaintiff was able to prove that such activity causes a problem at large and therefore it
was a public nuisance. And also, injunction order was being issued to the defendant and also
special damages were a given to the plaintiff.
- Krishna Panicker v Appukuttan Nair

POLLUTION
- Unfavourable change in the physical, biological or chemical component of the environment.
- When short term economic gains are prioritized at the cost of long term ecological loss,
environmental pollution occurs.

Two types of Pollution:

- Primary: They have an immediate effect. For example – smoke, poisonous gases, etc.
- Secondary: They have a very slow effect and acts as a ‘slow killer’. For example – Noise
Pollution.

Spread of Pollution:

- Local Pollution
- Regional Pollution
- Transboundary Pollution
- Global Pollution

Agents causing pollution are referred to as ‘pollutants’. They can be divided into three types:
 - Degradable Pollutants: Discarded Vegetables, etc.
- Slowly Degradable or Persistent Pollutants: They remain in the environment for many years in an
unchanged condition.
- Non – Degradable Pollutants: Nuclear Waste.

Different kinds of Pollution:

- Air Pollution
- Water Pollution
- Thermal Pollution

Efforts done to overcome Pollution related issues:

- Attempts done by Tiwari Committee (1980), basically set up to suggest legislative and
administrative measures that ought to be taken for the protection of the environment. There were
five major areas which required immediate attention for preservation and not just limited to
protection:
1. Land and Water management
2. Natural Living resources
3. Human Settlement
4. Environmental pollution and Environment impact assessment
5. Environmental Law Education

Outcomes of the Tiwari Committee:

Provided recommendations with respect to existing laws. It reviewed them. The committee said that the
existing laws have shortcomings. Some of them were at the time of British era.

1. They were outdated

2. The law did not carve out policy objective
3. The law did not have explicit provisions for adequate and effective implementation of the laws
4. There was no express provision or procedure to review the efficiency and effectiveness of the
laws.

After the above report, the Environment Department was set up at both the Central and the State level.
There was an independent ministry (Ministry for Forest and Environment) and department which came
into existence in 1991. There were more than 100 laws prevailing. There was huge difference between
laws and their implementation. Some areas weren’t covered.

The importance and recognition of Environmental Law was brought in post the Stockholm Conference.
This also includes the national laws that were enforced.

Various Laws dealing with Environmental Protection

- Law of Torts

In the case of Kamal Nath, Syed Ahmed said “Pollution is a civil wrong. By its very nature, it is a Tort
committed against the community as a whole. A person, therefore, who is guilty of causing pollution has
to pay damages (compensation) for restoration of the environment and ecology. He has also to pay
damages to those who have suffered loss on account of the act of the offender. In addition to damages
aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that
it may act as a deterrent for others not to cause pollution in any manner.”

Nuisance is essentially unlawful interference causing harm to the person. In the case of Dhanna Lal and
Anr. V Thakur Chittrasingh Mehtapsingh, it was held that, Constant noise, if abnormal or unusual, can
be an actionable nuisance, if it interferes with one's physical comforts.

1. Degree of Intensity
2. Duration
3. Mode of using the Property
4. Locality

Ram Ratan v Munna Lal (1959):

Four Types of Torts involved:

1. Nuisance: Three remedies – Abatement, Damages and injunction [under SRA and CPC]
2. Negligence: Failure to exercise due care and diligence.
3. Trespass
4. Strict Liability

- Indian Penal Code, 1860

Chapter XIV- Of Offences Affecting The Public Health, Safety, Convenience, Decency And Morals

1. Section 268- Public Nuisance

2. Section 290
3. Section 269Negligent act likely to spread infection of disease dangerous to life
4. Section 270- Malignant act likely to spread infection of disease dangerous to life
5. Section 277- Fouling water of public spring or reservoir
6. Section 278- Making atmosphere noxious to health
7. Section 284- Negligent conduct with respect to poisonous substance
8. Section 285- Negligent conduct with respect to fire or combustible matter
9. Section 286- Negligent conduct with respect to explosive substance
10. Section 425 to 440- maximum punishment 3 months imprisons or fine or both.
- Bhopal gas tragedy
- The remedy is ineffective because monetary fines are very low.
- Criminal Procedure Code, 1973

Section 133 provides the Magistrate with the power to take action against any unlawful obstruction or
nuisance occurring in any public place. As per the case of Ratlam Municipality, a citizen can always rely
upon section 133 of the Criminal Procedure Code for the removal of the nuisance of pollution. Two other
principles were laid down:

1. It is of greater significance in view of the fact that the Water Act and the Air Act do not
provide for the affected parties a right to prosecute violators of the provisions.
2. The corporate bodies like companies, corporations can be held responsible for the
nuisance of pollution caused.
Desi Sugar Mills v Tupsi Kehar:Orders under S.133 cannot be made on the basis that the complaint has
not been filed by more than 2 people. The only important need is that definite, convincing and scientific
evidence must be present.

Krishna Gopal v State of MP:In this case, a complaint was registered against a glucose factory which was
causing air pollution due to the discharge of steam in the air resulting in fly ash and noise pollution. Only
one woman came forward and filed a complaint on the grounds that her husband was a heart patient and
this is harmful to his health. The main issue was whether the alleged nuisance could be a public nuisance
or is it a private issue? The Court held that it is not the intent of law that the community as a whole or a
large number of complainants come forward to lodge their complaint or protest against the nuisance;
that does not require any particular number of complainants. A mere reading of Section 133 (1) would
go to show that the jurisdiction of the Sub-Divisional Magistrate can be invoked on receiving a report of
Police Officer or other information, and on taking such evidence if any, as he thinks fit. These words are
important, even on information received the Sub-Divisional Magistrate is empowered to take action in
this behalf for either removal or regularising a public nuisance.

PC Cherian v State of Kerala: Here, two rubber industries were situated in an industrial area who were
using carbon black for carbon mixing process. This excess carbon black disseminated into the
atmosphere. There was no necessary equipment to prevent such dissemination of carbon black which
caused discomfort, injury and nuisance to the people of the nearby area and even prevented them from
attending to their avocation as there were 600 Christian families in the area. When they used to come to
attend the church prayers, their clothes soiled as a result of atmospheric pollution. Under these
circustances, the sub Divisional Magistrate of Kottayam under S.133 directed the stoppage of mixing of
carbon in both the factories. The petitioner claimed that there was no ground to invoke S.133 by the
Magistrate as the license was issued under the Panchayat Act and the Factories Act, 1948 on satisfying
the conditions which included absence of hazard to health.

The HC concluded that dissemination of carbon black in the atmosphere was a public nuisance and a
health hazard since it affects the respiratory organs of the people. It also caused discomfort to the
community of the area. It also considered the question that the stoppage of working of the factory under
S.133 would affect the right of livelihood of the employees. The Court replied to the same saying that the
danger that general public has faced by service mixing of carbon without adequate equipment to prevent
dissemination of carbon, outweighs the advantage in the form of jobs for a few persons and that too under
threat of hazard to their own health.The Court held that it is not necessary to establish
toxicity on scientific basis before issuing orders to restrain the public nuisance. Referring to Ratlam
Municipality Case, the Court held that public nuisance because of pollutants being discharged by big
factories to the detriment of the poorer section, is a challenge to the social justice component of the rule
of law.

State of MP v Kedia Leather and Liquor Limited:The Court held in this case that the area of S. 133 of the
Code and Pollution laws like the Water Pollution Act and the Air Pollution Act are different and not
identical in nature. While S. 133 is in the nature of preventive measure, the provision in the
abovementioned two Acts are not just curative but also preventive and penal. It is implied that Section
133 shall not apply, if there is an application of the two abovementioned Acts, since the applicability is
different. The provisions appear to be mutually exclusive and different in their respective fields and there
was no impediment for their existence side by side. Moreover, passing of new pollution control laws,
does not repeal Section 133 of the Code.

“When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the
presumption against implied repeal of other laws is further strengthened on the principle expressio unius
(persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of
another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC 944 (HL). The continuance of
existing legislation, in the absence of an express provision of repeal by implication lies on the party
asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary
implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of
the earlier Act and that the two cannot stand together. But, if the two can be read together and some
application can be made of the words in the earlier Act, a repeal will not be inferred.”

“The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and
involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately
irreparable damage would be done to the public.”

Suhel Khan v State of Maharashtra: What is a condition precedent for the application of S.133? The
condition precedent for the application of S.133 is that the conduct of the trade must be injurious in
presenti to the health or physical comfort of the community. There must, at any rate, be an imminent
danger to the health or the physical comfort of the community in the locality in which the trade or
occupation is conducted.

2. Factories Act, 1948

It was after there was huge increase in industrial development and pollution. Section 12 says that the
occupier is duty bound to follow effective arrangement in factory for treatment of affluent. State can
frame rules. Chapter 4 A - inserted in 1987. 8 section were there. It deals with hazardous processes.
Section 14 covers fumes and dust particles. Section 87 & 87A and 96A are important.
15(1) - ventilation
37 - safety against explosive and inflammable dust
92 – punishment - 2 years’ imprisonment or fine

3. Insecticides Act
It empowers the central and state government to prohibit sale, distribute and use of dangerous
insecticides. The manufacture and distribution of insecticides are now regulated through licensing. In case
of violation – prosecution and penalties shall be imposed. The Central Insecticide Board – committee
constituted under the board which advises with respect to registration insecticides after examining their
formula and testing their efficacy and safety standards.

4. Public Liability Insurance Act, 1991

It was enacted after Bhopal Gas tragedy. Section 3 - no fault liability - imposed on owner. Claimant need
not prove default. (linked to absolute liability) Section 14- when an offence is committed, the person in
charge is deemed responsible (Vicarious liability principle). Environment Relief Fund was set up with a
motive to rehabilitate the sufferers of disasters.

5. Environment Pollution and Disaster Management Act

After Bhopal gas tragedy, they came up with Disaster Management Act. Nuclear as well as natural
disasters victims get relief under DMA. The SC said that disaster management is part of right to
sustainable development in the Tehri Bandh Sangharsh Samiti case. There is an imposition of Absolute
liability when person deals with hazardous substance- non delegable duty.

THREE BODIES FUNCTIONAL IN THE FIELD OF ENVIRONMENT

- Ministry of Forest and Environment
Primarily concerned with implementation of policies and programmes for conservation of country’s
natural- lakes, rivers, biodiversity and wildlife. resources.

5 BROAD OBJECTIVES:
1. Conservation and survey of flora, fauna and wildlife
2. Prevention and control of pollution
3. Protection of environment
4. Ensuring the welfare of animals
5. Afforestation and regeneration of degraded areas

- Central Pollution Control Board

POWERS OF THE CENTRAL POLLUTION CONTROL BOARD

1. Section 18 empowers the CPCB to perform functions of the SPCB. It says that “Every State
Board shall be bound by such directions in writing as the Central Board or the State Govt. may
give to it. Provided where a direction given by the State Govt. is inconsistent with the direction
by the Central Board the matter shall be referred to the Central Govt. for its decision.”
2. Section 33(A): The Board can issue directions for closure of industry & disconnection of
electricity in case of persistent defiance by any polluting industry.
3. Section 4: The State Govt. shall constitute a State Pollution control Board, to exercise the powers
conferred and perform the function assigned under this Act.

FUNCTIONS AND POWERS OF THE CENTRAL POLLUTION CONTROL BOARD

https://thefactfactor.com/facts/law/civil_law/environmental_laws/central-pollution-control-board/1308/

[Can’t CCP]

- State Pollution Control Board

Section 4 of the Water Act empowers the state govt. to appoint and constitute SPCB in the rep state to
perform functions assigned under the Act.

FUNCTIONS OF SPCB (UNDER S. 17)

- Planning a comprehensive program for the prevention, control or abatement of pollution of
streams and wells in a state.
- Advisory – SPCB can advise the state government on any matter concerning the prevention,
control or abatement of water pollution.
- The SPCB has the responsibility to collect and disseminate information related to water pollution.
- Investigation and research – The functions of SPCB to encourage, conduct and participate in
investigation and research related to problems of water pollution and prevention, control or
abatement of water pollution.
 - The SPCB in collaboration with the CPCB organizes training of persons engaged in programs
relating to prevention, control or abatement of water pollution and organize mass education
programs relating to it.
- Inspection – The SPCB inspects sewage or trade effluents, works and plants for the treatment of
sewage and trade effluents and to review plans and other data related to plant set up for the
treatment of water, work for the purification thereof and the system of disposal of sewage or trade
effluents or in connection with the grant of any consent as required by the Water Act of 1974.
- The SPCB lays down, modify, or annul effluent standards for the sewage and trade effluents and
for the quality of receiving water resulting from the discharge of effluents and to classify water of
the state.
- To evolve economical and reliable methods of treatment of trade effluents and sewage having
regard to the peculiar condition of soil, climate, and water resources in different regions.
- To evolve methods of utilisation of sewage and trade effluents in agriculture.
- The SPCB is liable to evolve efficient methods of disposal of trade effluents and sewage on land
as are necessary on account of the pre-dominant conditions of scant stream flows that are not
available for major part of the year.
- Laying down the standards of treatment of sewage and trade effluents to be discharged in any
particular stream taking into account the minimum fair weather dilution available in that stream
and the tolerance limits of pollution permissible in the water of the stream after the discharge of
effluents.
- It advises the state government about the location of any industry which is likely to pollute a
stream or well.
- CPCB and state government. may entrust SPCB with any other function not mentioned in the
Act.

POWERS OF SPCB
- Under Sections 20, the SPCB has the power to conduct surveys of any area for better
performance. It also provides with the power to obtain information regarding anything that
hinders or can be obstruction for water.
- Section 21 – SPCB or any officer authorised shall have power to take samples of water, or
sewage or trade effluents for the purpose of analysing it.
- Section 23 – They have the power to enter and inspect any time and any place for performing its
functions.
- Section 25 – Permission of SPCB.
- Section 27 – Power of withdrawal of consent or refuse the establishment of any industry.
- Section 30 –To carry out certain functions that are required to be fulfilled
- Section 32 –Emergency operation
- Section 33 – Application to court for restraining the apprehended pollution of water
- Section 33A – Closure of industries or power to give directions for stopping any essential
services to an industry that is causing pollution

Section 4(4) of the Water Act – Union Territories –No State Board shall be constituted for a Union
territory and in relation to a Union Territory; the CentralBoard shall exercise the powers and perform the
functions of a State Board for that Union Territory: Provided that in relation to a Union Territory the
Central Board may delegate all or any of its powers and functions under this sub-section to such person or
body of persons as the Central Government may specify.The pollution control boards are actively
working to prevent all kinds of pollution.

WATER (PREVENTION AND CONTROL OF POLLUTION) ACT

- Preamble – Maintenance of wholesomeness of water
- To set parameters or standards of different water resources
- Key features:
1. Polluter pays principle – There are provisions for penalties as well
2. Water act commands and controls different projects and controls how they will work. In case they
adversely affect the environment, they can control.
3. End of the pipe treatment – Before the affluents are discharged in the environment, they must be
treated.
- Objective is three-fold:
1. Prevention and control of water pollution;
2. Maintaining the wholesomeness of water;
3. Establishment of board for the prevention and control of water.
- It is applicable to the entire country.
- Definitions have been provided under Section 2- pollution, sewage effluent, trade effluent, occupier,
outlet, and stream;
- (e) "pollution" means such contamination of water or such alteration of the physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any other liquid,
gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a
nuisance or render such water harmful or injurious to public health or safety, or to domestic,
commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or
plants or of aquatic organisms
- (g) "sewage effluent" means affluent from any sewerage system or sewage disposal works and
includes sullage from open drains;
- (k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any
premises used for carrying on any 3 [Industry, operation or process, or treatment and disposal
system], other than domestic sewage.
- (d) "occupier", in relation to any factory or premises, means the person who has control over the
affairs of the factory or the premises, and includes, in relation to any substance, the person in
possession of the substance;
- (dd) "outlet" includes any conduit pipe or channel, open or closed carrying sewage or trade effluent or
any other holding arrangement which causes or is likely to cause, pollution
- (j)"stream" includes- (i) river; (ii) water course (whether flowing or for the time being dry); (iii)
inland water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such
extent or, as the case may be, to such point as the State Government may, by notification in the
Official Gazette, specify in this behalf;

CPCB has developed a classification chart of water with respect to the use of water and quality to be
maintained. The quality can be controlled by setting standard of quality.Standard is set on the basis of use
of water.
There is a “designated best use” of water test on the basis of which there are 5 classes-
1. Class A – drinking water
 2. Class B – outdoor bathing
3. Class C – drinking water but after conventional treatment and disinfection
4. Class D – propagation of wildlife and fisheries
5. Class E –Irrigation, industrial cooling, controlled waste disposal
The main functioning of the boards is to maintain these classifications. Anything outside this cannot be
used for any purpose.
DIFFERENT CLASSES OF WATER
Drinking water at source found without conventional treatment but after disinfection is designated as
Class A while water designated for outdoor bathing comes under Class B. Any drinking water source
which has been conventionally treated comes under Class C while water used for propagation of wildlife
and fisheries is demarked as Class D. Water under Class E is used for irrigation and industrial cooling
along with waste disposal.

RESPONSIBILITIES THAT INDUSTRIES HAVE W.R.T. WATER ACT:

A. First things that a person has to do is obtain consent after satisfying that the project will not be
harmful to the environment. How effluent will not be harmful.
Consent is 2 fold:
1. Consent required to establish
2. Consent required for the operation
- Section 25 –Restrictions on new outlets and new discharges
B. NOC by the factory for establishment. This consent is granted on a 3 fold basis – 3 things have
to be demonstrated:
1. The technology used in their factory is a clean technology.
2. The waste which is thrown out or the effluent is properly treated.
3. There won’t be any adverse impact on water bodies receiving those effluents.
- Consent for continuation of operation is also needed
- The SPCB is duty bound to do inspection. If any irregularities are found, they either ask the occupier
to remove that irregularity and if the irregularity persists, the occupier may be asked to close the
facility.
- They have to check the effluents that are thrown out- what is the quality of the effluent
- Consent is also renewed- all the formalities are to be undergone again.
- Sometimes NOC is not sufficient, EIA may be needed- a higher degree of consent requirement
- With respect to punitive measures- SPCB have the power of closure in case of non-compliance

Read Ss. 25(1)(c) and 25(5).

25(1)(c) – Begin to make any new discharge of sewage: Provided that a person in the process of taking
any steps to establish any industry, operation or process immediately before the commencement of the
Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary
prior to such commencement, may continue to do so for a period of three months from such
commencement or, if he has made an application for such consent, within the said period of three months,
till the disposal of such application.

 Section 25(5) – Where, without the consent of the State Board, any industry, operation or process, or any
treatment and disposal system or any extension or addition thereto, is established, or any steps for such
establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or
a new discharge of sewage is made, the State Board may serve on the person who has established or taken
steps to establish any industry, operation or process, or any treatment and disposal system or any
extension or addition thereto, or using the outlet, or making the discharge, as the case may be, notice
imposing any such conditions as it might have imposed on an application for its consent in respect of such
establishment, such other or discharge.

(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this
section and so much of the register as relates to any outlet, or to any effluent, from any land or premises
shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet,
land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions
so contained in such register shall be conclusive proof that the consent was granted subject to such
conditions.

What are the conditions for a deemed consent to be met?

Vijaynagar Eductaion Trust v Karnataka State Control Board – The educational trust wanted set up a
medical college. In lieu of the same, they applied for the consent to the board. Their application was
rejected. HC said that the application was filed on 27 Nov 1999. On 9 Feb, 2000, a site inspection was
ordered. On May, 2000, the board refused to grant consent. The scheduled period of 4 months had been
passed after which the refusal came. Since refusal came late, it will be considered as deemed consent.

Industries have a right to file objection

A.P. Pollution Control Board v. M.V. Nayudu – As stated earlier, the Government of India should, in our
opinion, bring about appropriate amendments in the environmental statutes, Rules and notification to
ensure that in all environmental Courts, Tribunals and appellate authorities there is always a Judge of the
rank of a High Court Judge or a Supreme Court Judge, - sitting or retired - and Scientist or group of
Scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating
to environment and pollution.

S. 29 – Revisionary power of the Board – will revise the orders already passed by the Board u/s 25, 26
and 27 to determine legality of those orders.

Gujarat Pollution Control Board v Parmar Devusinh Shersinh –Any person aggrieved by an order made
by the Board under Section 25, Section 26 or Section 27, has a right of appeal’.Revision is not a right
guaranteed to a party but only a power conferred to the state government.

Delhi Bottling Co Pvt Ltd vs Central Water Board of Control and Prevention, 1896 – If the treatment
plant is not erected as per the consent orders, restraint order may be passed against them.

Re Bhawani River Shakti Sugar Ltd case, 1998 – Directions were issued by the Pollution Control Board.
The directions were reserved for the industry for ensuring proper storage of effluents in lagoons It also
directs for proper treatment effluent. Some of the said directions were not complied with and as a result of
this some effluent reached the river Bhavani and polluted its water. Despite enough time given, no
remedial steps were taken by the industry. Thus, the Court directed the industry to be closed. The above
judgment of the Court envisages that the closure of the industry is essential since in spite of time given,
the industry has not complied with the directives.