Chanderprabhu Jain College of Higher Studies

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E-Notes

CLASS & SECTION: BALLB (A+B+C) Vth Sem

SUBJECT NAME : Environmental Studies and Environmental Law
SUBJECT CODE : LLB 301
FACULTY : Ms. Aastha Sharma
Unit-1
Unit 1
Environment: Meaning

The expression―environment connotes surroundings, environment

contains air, water, food and sunlight etc. According to Section 2(a) of the
Indian Environment (Protection) Act, 1986, the term ―Environment‖
includes water, air and land and human beings, other living creatures, plants,
micro-organism and property. Environment means all the essential and
necessary elements that are first and foremost needs for the survival and
basic and for the existence of life and living and non -living creatures. Those
elements which are called the environment.
Environment Pollution: Meaning and Issues
Environment pollution refers to the introduction of harmful pollutants into
the environment. These pollutants contaminate the environment. It has a
hazardous effect on the natural world and on the activities of living beings.

The major types of environmental pollution are air pollution, water

pollution, noise pollution, thermal pollution, soil pollution and light
pollution. With the dawn of the age of science and technology, there has
been huge growth and development of human potentials. The surge in
pollution is often attributed to the wide scale urbanization and large-scale
industrialization,
which is in turn a product of our advancement in science and technology
and, it is here that man first began losing control and became victim of his
own creations.

The sources and causes of environmental pollution include the following:

• Industrial activities: The industries all over the world that

brought prosperity and affluence, made inroads in the biosphere and
disturbed the ecological balances. The pall of smoke, the swirling gases,

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industrial effluents and the fall-out of scientific experiments became
constant health hazards, polluting and contaminating both air and water. The
improper disposal of industrial wastes are the sources
of soil and water pollution. Chemical waste resulting from industry can
pollute lakes, rivers and seas and soil too as well as releasing fumes.
• Dumping solid waste: Household and commercial waste
pollutes the environment when not disposed of properly.

• Vehicles: The smoke emitted by vehicles using petrol and

diesel and the cooking coal also pollutes the environment. The multiplication
of vehicles, emitting black smoke that, being free and unfettered, spreads out
and mixes with the air we breathe. The harmful smoke of these vehicles
causes air pollution. Further, the sounds produced by these vehicles
produces causes noise-pollution.

• Rapid urbanization and industrialization: The urbanization

and the rapid growth of industrialization are causing through environmental
pollution the greatest harm to the plant life, which in turn causing harm to
the animal kingdom and the human lives.

• Population overgrowth: Due to the increase in population,

particularly in developing countries, there has been surge in demand for
basic food, occupation and shelter. The world has witnessed massive
deforestation to expand absorb the growing population and their demands.

• Combustion of fossil fuels: The combustion of fossil fuels

pollutes the air, the soil and the water with noxious gases such as CO2 and
CO.
• Agricultural waste: Fertilizers and pesticides used in
agriculture are key causes of environmental pollution.

Constitutional Guidelines

(1) Right to Wholesome environment: Evolution and Application

Ans- The right to live in a clean and healthy environment is not a recent
invention of the higher judiciary in India. The right has been recognized by
the legal system and the judiciary in particular for over a century or so. The

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only difference in the enjoyment of the right to live in a clean and healthy
environment today is that it has attained the status of a fundamental right the
violation of which, the Constitution of India will not permit. The judiciary
has managed to increase the ambit of Article 21 of the constitution of India,
through various judicial pronouncements, to include the Right to a healthy
and clean environment to be a fundamental right under the right to life.

Judicial Pronouncements on Right to clean and healthy environment as

a fundamental right:
Article 21 of the constitution of India provides for the right to life and
personal liberty, it states “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” This article
imposes a duty on the state to protect the life and liberty of the people. The
concept of the right to life has been broadened through the judicial
pronouncements. While resolving cases relating to the environment, the
judiciary considered the right to clean or the good environment as
fundamental to life and upheld as a fundamental right.

The Judiciary has played a vital role in interpreting the Article 21 of the
Indian Constitution. The scope of Article 21 of the Constitution has been
considerably expanded by the Indian Supreme Court, which has interpreted
the right of life to mean the right to live a civilized life and it also includes
the right to clean environment. Following are some important judicial
pronouncements by the apex court of India in this regards:

Subhash Kumar v. State of Bihar

In the instant case, the Court observed that ‘right to life guaranteed by article
21 includes the right of enjoyment of pollution-free water and air for full
enjoyment of life.’ Through this case, the Court recognized the right to a
wholesome environment as part of the fundamental right to life. This case
also indicated that the municipalities and a large number of other concerned
governmental agencies could no longer rest content with unimplemented
measures for the abatement and prevention of pollution. They may be
compelled to take positive measures to improve the environment.

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Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar
Pradesh.
In this case, the representatives of the Rural Litigation and Entitlement
Kendra, Dehradun wrote to the Supreme Court alleging that illegal limestone
mining in the Mussorie-Dehradun region was causing damage to the fragile
eco-systems in the area. The Court treated this letter as a public interest
petition under Article 32 of the Constitution. And also several committees
have been appointed for the full inspection of illegal mining sites. All the
committees came at the conclusion that the limestone quarries whose
adverse effects are very less, only those should be allowed to operate but
that too after further inspection and all. Therefore, the Court ordered the
closure of a number of limestone quarries. Although the Court did not
mention any violation of fundamental right explicitly it impliedly admitted
the adverse effects to the life of people and involved a violation of Article 21
of the Constitution.

M.C. Mehta vs. Union of India (Vehicular Pollution Case)

A matter regarding the vehicular pollution in Delhi city, it was held to be the
duty of the Government to see that the air did not become contaminated due
to vehicular pollution. The Apex court again confirming the right to a
healthy environment as a basic human right and stated that the right to clean
air also stemmed from Art 21 which referred to Right to life. This case has
served to be a major landmark because of which lead-free petrol supply was
introduced in Delhi. There was a complete phasing out old commercial
vehicles more than 5 years old as directed by the courts.

T.N. Godavarman Thirumulpad v. Union of India

In this very recent case concerning conservation of forests, Justice Y.K.

Sabharwal, held that considering the compulsions of the States and the
depletion of forest, legislative measures have shifted the responsibility from
States to the Centre. Moreover, any threat to the ecology can lead to the
violation of the right of enjoyment of healthy life guaranteed under Art 21,
which is required to be protected. The Constitution enjoins upon this Court a
duty to protect the environment.

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Murli S. Deora vs. Union of India

In the instant case, it was pointed out by the Court that: “Since article 21 of
the Constitution guarantees that none should be deprived of their life, then
why should a non-smoker become the victim of the whole process? It was
contended that smoking is injurious to health and may affect the health of
smokers but there is no reason that health of passive smokers should also be
injuriously affected. So, till the statutory provision is made and implemented
by the legislative enactment, it was held that it would be in the interest of the
citizens to prohibit smoking in public places and the person not indulging in
smoking cannot be compelled to passive smoking on account of the acts of
the smokers.”

Conclusion

Following a long course of active interpretation of constitutional and

legislative clauses by the judiciary and vigorous efforts of some green
citizens, the Indian environmental scenario has undergone a positive change.
Today, the environmental consciousness imported by the courts, mingled
with subsequent legislative efforts in the later years, introduced the Right to
Environment as a fundamental right under Article 21 of the constitution of
India.

The Courts in India have played a distinguishing role in gradually enlarging

the scope of a qualitative living by engaging themselves in and resolving
various issues of environmental protection. Consequently, activities posing a
major threat to the environment were curtailed so as to protect the
individual’s inherent right to a wholesome environment as guaranteed under
various instruments for the protection of legal and human rights.

(2) Constitutional provisions: Ar 14, 16, 19(1) g, 48-A, and 51 (1) g

Environmental Laws and Constitutional Provisions in India

It is interesting to note that natural resources had been stored virtually

untouched in the Earth for millions of years. But since the start of the
industrial revolution vast amounts of these resources had been exploited
within a period of just a couple of hundreds of years at unimaginable rates,

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with all the waste from this exploitation going straight in the environment
(air, water, land) and seriously damaging its natural processes. Although
pollution had been known to exist for a very long time (at least since people
started using fire thousands of years ago), it had seen the growth of truly
global proportions only since the onset of the industrial revolution in 19th
Century.

Environmental degradation in India has been caused by a variety of social,

economic, institutional and technological factors. Rapidly growing
population, urbanization and industrial activities have all resulted in
considerable deterioration in the quality and sustainability of the
environment. Environmental ethics have also formed an inherent part of
Indian religious precepts and philosophy.
The importance of Judiciary in a democratic setup for protection of life and
personal rights can hardly be overestimated. India has a highly developed
judicial system with the Supreme Court having plenary powers to make any
order for doing complete justice in any cause or matter and a mandate in the
Constitution, to all authorities, Civil and Judicial, in the territory of India to
act in aide of the Supreme Court.

In considering the role of the judiciary in environmental governance, there

are two issues that need to be considered. The first is the role the judiciary in
the interpretation of environmental law and in law making and the second is
the capability of jurists to effectively interpret the increasingly cross-linked
issues brought to their attention.

Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment in the

seventies prompted the Indian Government to enact the 42nd Amendment
(1976) to the Constitution. The said amendment added Art. 48-A this:

“the State shall endeavor to protect and improve the environment and to
safeguard the forests and wildlife of the country”.
A similar responsibility imposed upon on every citizen in the form of
Fundamental Duty – Article 51- A(g)

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“to protect and improve the natural environment including forest, lakes,
rivers and wildlife, and to have compassion for
living creatures”.

The amendments also introduced certain changes in the Seventh Schedule of

the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list
to the Concurrent List. This shows the concern of Indian parliamentarian to
give priority to environment protection by bringing it out the national
agenda. Although unenforceable by a court, the Directive Principles are
increasingly being cited by judges was a complementary to the fundamental
rights. In several environmental cases, the courts have guided by the
language of Art. 48A. and interpret it as imposing “an obligation” on the
government, including courts, to protect the environment.

In L.K Kollwal V State of Rajasthan, a simple writ petition by citizens of

Jaipur compelled the municipal authorities to provide adequate sanitation.
The court observes that when every citizen owes a constitutional duty to
protect the environment (Art.51A), the citizen must be also entitled to enlist
the court’s aid in enforcing that duty against recalcitrant State agencies.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that
certain common properties such as rivers, forests, seashores and the air were
held by Government in Trusteeship for the free and unimpeded use of the
general public. Granting lease to a motel located at the bank of the River
Beas would interfere with the natural flow of the water and that the State
Government had breached the public trust doctrine.
A matter regarding the vehicular pollution in Delhi city, in the context of Art
47 and 48 of the Constitution came up for consideration in M.C. Mehta vs.
Union of India (Vehicular Pollution Case). It was held to be the duty of the
Government to see that the air did not become contaminated due to vehicular
pollution. The Apex court again confirming the right to healthy environment
as a basic human right stated that the right to clean air also stemmed from
Art 21 which referred to right to life. This case has served to be a major
landmark because of which lead-free petrol supply was introduced in Delhi.
There was a complete phasing out old commercial vehicles more than 5
years old as directed by the courts. Delhi owes its present climatic conditions
to the attempt made to maintain clean air.

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The Ganga Water Pollution case: M C Mehta V. Union of India

The owners of some tanneries near Kanpur were discharging their effluents
from their factories in Ganga without setting up primary treatment plants.
The Supreme Court held that the financial capacity of the tanneries should
be considered as irrelevant while requiring them to establish primary
treatment plants. The Court directed to stop the running of these tanneries
and also not to let out trade effluents from the tanneries either directly or
indirectly into the river Ganga without subjecting the trade effluents to a
permanent process by setting up primary treatment.
Article 14 and Article 19 (1) (g)
ART. 14 states: “The states shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.’’ The
right to equality may also be infringed by government decisions that have an
impact on the environment. An arbitrary action must necessary involve a
negation of equality, thus urban environmental groups often resort to Art.14
to quash arbitrary municipal permission for construction that are contrary to
development regulations.

( C ) Environment Protection through Public Interest Litigation

A writ petition can be filed to the Supreme Court under Art.32 and the High
Court under Art.226, in the case of a violation of a fundamental right. Since
the right to a wholesome environment has been recognized as an implied
fundamental rights, the writ petitions are often resorted to in environment
cases. Generally, the writs of Mandamus, Certiorari and Prohibition are used
in environmental matters. For instance, a Mandamus (a writ to command
action by a public authority when an authority id vested with power and
wrongfully refuses to exercise it ) would lie against a municipality that fails
to construct sewers and drains, clean street and clear garbage (Rampal v
State of Rajasthan) likewise, a state pollution control board may be
compelled to take action against an industry discharging pollutants beyond
the permissible level.

The writs of certiorari and prohibition are issued when an authority acts in
excess of jurisdiction, acts in violation of the rules of natural justice, acts
under a law which is unconstitutional, commits an error apparent on the face
of the record, etc. For instance, a writ of certiorari will lie against a

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municipal authority that consider a builder’s applications and permits
construction contrary to development riles e.g. wrongfully sanctions an
office building in an area reserve for a garden. Similarly, against water
pollution control board that wrongly permits an industry to discharge
effluents beyond prescribe levels.

A writ of Certiorari will lie against a municipal authority that permits

construction contrary to development rules or acts in excess of jurisdiction
or in violation of rules of natural justice for instance wrongly sanctioning an
office building in an area reserved for garden.

When a fundamental right, which includes right to wholesome environment

is violated Art. 32 and 226 provide appropriate remedy.

D) Environmental laws: India and international

1. Law of Torts & Public Nuisance

Ans- Nuisance It means anything which annoys, hurts or that which is

offensive. Under the common law principle the nuisance is concerned with
unlawful interference with the person’s right over wholesomeness of land or
of some right or in connection with it. But for an interference to be an
‘actionable nuisance’ the conduct of the defendant must be unreasonable.
Nuisance may be public or private in nature. Hence acts interfering with the
comfort, health or safety are covered under nuisance. The interference may
be due to smell, noise, fumes, gas, heat, smoke, germs, vibrations etc. In the
private nuisance the basis of an action under nuisance is unreasonable and
unnecessary inconvenience caused by the use of defendant’s land.17 A
public nuisance is an unreasonable interference with a right common to
general public, otherwise an act or omission which materially affects the
reasonable comfort, convenience, health, safety and quality of life of a class
of persons. The activities include carrying of trades causing offensive
smells, intolerable noises, dust, vibrations, and collection of filth that affects
the health or habitability in a locality. Reasonableness of the defendants’
conduct is usually the pivotal question in nuisance. In determining
reasonableness, the Courts are generally guided by ordinary standard of
comfort prevailing in the neighborhood.

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Public nuisance under Section 133 of the Criminal Procedure Code, 1973.
The scope of the provision as an instrument of pollution control came under
scrutiny in several cases. In Deshi Sugar Mill vs. Tupsi Kaharthe Patna High
Court held that the law of nuisance under Section 133 Cr. P.C. would be
applicable to pollution related cases also. The Court also recognized that the
magistrate has the power to proceed against the discharge of effluents
injurious to the health of the community. In Raghunandan vs. Emperor27 the
Allahabad High Court upheld the magistrate’s order forbidding the factory
owner from operating his factory engines from 9 pm to 5 am on the ground
that the noise emanated from the factory is ‘injurious to the physical comfort
of the community. The Court held nuisance of such a nature would
undoubtedly be injurious to the physical comfort and those living in the
neighborhood of the factory and the matter attracts action under Section.133
of Cr.P.C. In Shaukat Hussain vs. Sheodaya the Madhya Pradesh High Court
limited the application of the provision of Section 133 Cr. P. C. only to
actual nuisance and held that it should not be used in the case pollution and
dismissed the special leave petition, relied on the findings of the magistrate
believing him to have made a local inspection of the site. The Supreme
Court captured the potentiality of the law of nuisance in the Criminal
Procedure Code. In Municipal Council, Ratlam vs. Vardhichand and
others30 the Supreme Court identified the responsibilities of the municipal
council towards environmental protection and developed the law of public
nuisance in the Code of Criminal Procedure as a potent instrument for the
enforcement of their duties. When the case came before the Supreme Court
Justice V.R.Krishna Iyer made a thorough examination of the two main
issues.
STATUTORY REMEDIES In addition to the above remedies Parliament
has provided special channels to redress in certain special types of
environmental cases. The Public Liability Insurance Act of 1991 and the
National Environment Tribunal Act of 1995 provides a summary remedy to
the victims of the hazardous industrial accident. Both the laws adopt a ‘no
fault’ liability standard, all but abolishing the defenses available to the
owner of the hazardous facility and create speedy claims-disposal
machinery. Under the Public Liability Insurance Act, claims up to
Rs.25,000/- may be filed before the district collector, with the jurisdiction
for awarding larger amounts vesting in the National Tribunal constituted
under the Environmental Tribunal Act, 1995. 122 Until the enactment of the
Environment (Protection) Act of 1986, the power to prosecute belonged

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exclusively to the Government under the existing laws. Citizens had no
direct statutory remedy against a polluter. But after the enactment of
Environment (Protection) Act, 1986 under Section 19 of the E.P. Act a
citizen may prosecute an offender by a complaint to a magistrate of course
prior to complaining he must give the government 60 days notice of his or
her intention to complain. Similar provisions are available allowing citizens’
participation in the enforcement of pollution laws, in the Section 43 of the
Air Act 1981 and in Section 49 of the Water Act as amended in the year
1988.
1. Law of crimes.

Indian Penal Code, 1860

Introduction Environmental crime refers to the violation of laws intended to
protect the environment and human health. These laws govern air and water
quality and dictate the ways in which the disposal of waste and hazardous
materials can legally take place. Individuals or corporations can be found
guilty of environmental crimes.

Public Nuisance under the Indian Penal Code focuses on the operation of the
law of nuisance through specific statutory provisions in the Civil and
Criminal Codes of India. The Indian penal Code of 1860 contains elaborate
provisions defining the crime of public nuisance in its various aspects and
instances and prescribes punishments. Chapter XIV of the Indian Penal Code
deals with offences affecting public health, safety, convenience, decency and
morals. While Section 268 defines Public Nuisance, there are two specific
sections dealing with the fouling of water (Section 277) and making the
atmosphere noxious to health (section 278) which could be used against
perpetrators of water and air pollution.
Section 425: whoever with intent to cause, or knowing that he is likely to
cause, wrongful loss or damage to the public or to any person, causes the
destruction of any property, or any such change in any property or in the
situation thereof as destroys or demises its value or utility or affects
injuriously, commits “mischief.

2. Emergence of environmental Legislations.

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Ans- Evolution of Environmental Legislation in India The Indian Forest Act,
1927 consolidates the law relating to forests, the transit of forest-produce
and the duty leviable on timber and other forest products. The Prevention of
Cruelty to Animals Act was enacted in 1960 to prevent the infliction of
unnecessary suffering on the animals and to amend the laws relating to the
prevention of cruelty to animals. As a promotion for enactment of this act
there was formation of animal board of India. In 1966 Indian Forest Service
was constituted under the All India Services Act, 1951 by the government of
India. The main aim of their service is to implement the country’s National
Forest Policy which envisages scientific management of forest and to exploit
them on a sustained basis primarily for timber products. Wild life Act
enacted in the year 1972 with the objective of effectively protecting the wild
life of the country and to control Environment Management 96 poaching,
smuggling and illegal trade in wildlife and its derivatives. This act was
amended in January 2003.
To strengthen the act; the Ministry has proposed further amendments in the
law by introducing more rigid measures. Main objective is to provide
protection to the flora and fauna and also to ecologically important protected
areas. Water Act was enacted in 1974 to provide for the prevention and
control of water pollution and for water maintenance in the country. The
Water cess Act was enacted in 1977, to provide for the levy and collection of
a cess on water consumed by persons operating and carrying on certain types
of industrial activities. The act was last amended in 2003 Forest
Conservation Act was enacted in 1980 to protect and conserve country’s
forest. Air Act (1981) and was amended in 1987 to provide for prevention
control and abatement of air pollution in India. Well know Environment
protection Act (1986) came into existence after 14 years of UN conference
with an objective of protection and improvement of the country. Later on the
amendments were done to it in 1991. The Man and Biosphere(MAB)
programme of UNESCO was launched in 1971; India joined it in 1988 after
formation of bioreserve committee. Purpose of this is to develop a base for
rational use or conservation of natural resources while improving the
relationship between the man and environment. In India the coast line is very
lengthy which runs to 7860 km. The coastal line consists of Malvan
(Maharashtra), Okha (Gujarat), Mandapam (Tamil Nadu), Gangetic
Sundarbans (West Bengal) as well as Lakshadweep and Andaman group of
islands which are rich with regard to the marine flora and fauna. When we
are blessed with the natural resources, it is our duty to safeguard it and pass

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it on to our posterity. India has now established 15 bio reserves the first one
Nokrek (Meghalaya) in 1988. Unit 2: Policy and Legal Aspects of EM 97 In
Hazardous waste rules (1989) were framed in which hazardous chemicals
list was finalized. The Eco- Mark Scheme of India was introduced in 1991 to
increase the environmental awareness amongst citizens. This scheme aimed
at encouraging the public to purchase products which are eco friendly.
Public liability insurance act was enacted in 1991 to provide for damages to
victims of an accident which occurs as a result of handling hazardous
substances (owners associated with the production or handling). National
Environment Tribunal (1995) is for strict liability for damage arising out of
accidents caused from handling of hazardous waste. Biomedical Waste
Rules (1998) that deal with collection, reception, storage, treatment and
disposal of the waste. The Noise Pollution Rules (2000) the state
government categorised industrial, commercial and residential or silence
zones to implement noise standards. The Biodiversity Act (2002) was born
out of India’s attempt to realize the objectives mentioned in the United
Nations convention on biological Diversity (CBD) enacted in 1992 states
that country should use their own biological resources.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006, recognizes the rights of forest-dwelling Scheduled
Tribes and other traditional forest dwellers over the forest areas inhabited by
them. This act also provides framework for their rights. The National
Environment Appellate Authority (NEAA) was set up by the ministry of
environment and forests to address cases in which environment clearances
are required in certain restricted areas. It was established by the National
Environment Appellate Authority Act 1997 to hear appeals with respect to
restriction of areas in which any industries, operations or processes,
operations or processes shall or shall not be carried Environment
Management 98 out, subject to certain safeguards under the Environment
(Protection) Act, 1986. The Authority shall become defunct and the Act
shall stand repealed upon the enactment of the National Green Tribunal Bill
2009 currently pending in Parliament.

Sd/-
Ms. Aastha Sharma

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