ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA by Furqan Ahmad

ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA
Author(s): Furqan Ahmad

Source: Journal of the Indian Law Institute , July-September 2001, Vol. 43, No. 3 (July-
September 2001), pp. 358-387
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951782
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ORIGIN AND GROWTH OF ENVIRONMENTAL
LAW IN INDIA
Furqan Ahmad *
I Introduction
NATURE IS the common heritage of mankind. To preserve this heritag

mankind must make constant efforts. Pollution marks the man's failure to
do so. When voluntary action fails, an involuntary one must take over. It
is this process which gives birth to environmental law. Environmental
pollution is as old as the evolution of homosapiens on the planet. The
development of science and technology and ever increasing industries
has brought tremendous changes in the human environment. These did
upset the eco-laws, thereby shrinking the balance between human life and
environment. Also other innumerable problems accompanied which
affected the environment. However, pollution is recognised as most
serious problem.
The talk about preservation of environment or abatement of pollution
commences today with the Stockholm Declaration. It can even date back
to the British Raj in India. This is not a fact; if we study the history of
environmental law thoroughly the ancient Asian literature is replete with
provisions to preserve environment from degradation. Modern industrial
development is the outcome of last century. Hence, there is no mention
of it in the ancient literature.
During ancient times, there was emphasis on the care for the natural
resources. Our ancient people learnt to live with five elements of nature,
the 'earth', the 'water', the 'air', the 'light' and the 'cosmos' and they
worshipped them in reality and symbolically. Hindu religious literature,
to wit, the sacred Vedas , Puranas and Upanishadas , proffer considerable
information about relationships between man and nature and indebtedness
of mankind towards nature. Vedic literature is replete with verses for
upkeep and protection of environment and also prevention of pollution.
Myths, folklore, art, culture and religion adored energy (solar), trees and
wild life with reverence. The Vedas, Upanishadas , Puranas and other
scriptures emphasise the importance of maintaining an ecological
* Associate Research Professor, Indian Law Institute, New Delhi.

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2001 ] ORIGIN AND GROWTH OF ENVIORN MENTA L LA W 359
balance1 . Fouling of water was a sin visited with penance of out

fine, etc.2 Arthshastra mentions:3
The person who throws inside the city the carcass of anima
such as cat, dog, mongoose and snake, was punished with th
panas. If the carcass was of animals such as an ass, a cam
mule and a corpse, he was punished with a fine of fifty pan
The Mahabharata warns us, that while it takes only a few to d

cause pollution, the whole of the society may suffer from various d
Chanakya's mention of vikriti (pollution) warned the people of
effects of foul air and polluted water5 .
Likewise, in Holy Quran a reference - "Do not make mischie
earth"6 is found. Christians are baptized in water as a sign of pu
The basic tenets of Buddhism are simplicity and ahimsa or non
which are of great importance in conservation and protection
environment. The basic thrust of Jainism is on minimum destruction of
living and non-living resources for the benefit of man. The Guru Granth
Sahab too emphasizes that human beings are composed of five basic
elements of nature, i.e., earth, air, water, fire and sky7 .
All the religions that find their echo in India, have environmental
overtones for the observance of an ecological code of conduct and thus
show reverence towards the nature and its creations.
Resultant degradation of environment due to pollution affects all
nations. State boundaries are no guarantors to check the spread of pollution.
Regulatory measures to protect and preserve environment do require laws
at both national and international levels. Accordingly, national and
international laws are supposed to work in tandem. For understanding of
an idea in proper perspective, interaction of one with the other is a sine
qua non . The origin and growth of environmental law in India may call
for brief historical development of environmental laws at international
1 . See, Manu Smriti (verse 56 of chapter 3 and verse 56 of chapter 4) as cited by

B.N. Ti wari, "Hindu Culture and Ecology" in Gautam Sharma (ed.), Environment,
Man and Nature 31 (1989). See also, P.V. Kane, I History of Dharmshastra 538
(1968).
2. History of Dharmshastra , ibid.
3. Kautilya, Arthashastra 11.36.30. See, R.P. Kangle (ed.), 1 Kautilya Arthshastra
94 (1969).
4. Mahabharata (Raj d h arman u sastra Parve) 16.61 1.
5. Charakya Samhita 3.6.
6. See, M. M. Ali, The Commentary of Holy Quran 340 (1917).
7. Guru Nanak ji said in Jap ji Sahib :
Air is vital force, water the progenitor, the vast earth the mother of all,
day and night are nurses fonding all creation in their lap.
See also, B.R. Jindal et al , Environmental Studies 314-15 (1997).

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360 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 43 : 3
level8 particularly the ones which have influenced the devel

Indian environmental law in the recent times.
II Impact of International environment law
As noted above, an international concern for environmental protection

and sustainable development is comparatively of recent origin. The
customary international law does not contain any specific rules for
protection and preservation of environment. Hence, besides the general
principles of state responsibility, international treaties are the most
significant ones for regulating liberties and duties of states. The doctrine
of sic utero tuo ut alienum non laedas (one must use his own right so as
not to injure others) is a guiding principle for preventing pollution and
environmental damage between nations. The Trial Smelter case9 is a
landmark in this regard. In the realm of international law in 1941, the
Trail Smelter Arbitration between the United States of America and
Canada recognised that no state has a right to use, or permit the use of its
territory so as to cause injury by fumes in the territory of another, when
clear and convincing evidence causing serious injury is established.
The principle laid down in the Trial Smelter case was later accepted
by the United States as a binding principle especially when Mexico raised
the question of smells reaching its territory from privately owned stockyard
located within the borders of the United States10 . The extent of liability
in such cases was determined by Gut Dam Arbitration 11 in an agreement
between US and Canada about a dispute regarding the raising of level of
the dam and consequent damage caused to the United States. The doctrine
of sic utero tuo ut alienum non leadas underlies the principles 21 and 22
of Stockholm Declaration on Human Environment, 1972 12 . The doctrine
of sic utero tuo ut alienum non leadas was also reiterated in Corfu
8. The scope of this article confines only to national perspective. However, for an
incisive international aspect of Environmental Law in detail see, Prof. S.K. Verma, An
introduction to Public International Law 237-269 (1998).
9. United States v. Canada , 39 Am J Inť I Law 684 (1941).
10. 6 Whiteman Digest of International Law 256-59 (1968).
11.4 ILM 473 (1965).
12. Principle 21: States have... the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibilities to ensure that
activities within their jurisdiction or control do not cause damage to the environment
of other states or of areas beyond the limits of national jurisdiction.
Principle 22: States shall cooperate to develop further the international law
regarding liability and compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction or control of such
States to areas beyond their jurisdiction. See, UNDOC A/Conf. 48/14; 1 1 ILM 1416
(1972).

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200 1 ] ORIGIN AND GROWTH OF EN VIORNMENTA L LAW 361
Channel 13 case where the International Court of Justice declare

every state has a duty "not to allow knowingly its territory to be
acts contrary to the rights of other states".
Stockholm Conference 1972
The UN Conference on Human Environment and Development held

at Stockholm is considered as Magna Carta of environment protection
and sustainable development. It was for the first time that the world
community got together to deliberate on an important issue of
environmental protection and sustainable development. The conference
resulted in the 4 Stockholm Declaration On thè Human Environment'1* .
The Declaration, besides preamble, consists of seven universal truths and
twenty-six principles. It proclaimed that man is both creator and moulder
of his environment which gives him physical sustenance and affords him
the opportunity of intellectual, moral, social and spiritual growth. Both
aspects of man's environment, the natural and man-made, are essential to
his well- being and to the enjoyment of basic human rights even the right
to life itself. The basic principles laid down in that conference included,
(i) man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permitted a life of
dignity and well being; and (ii) man bears a solemn responsibility to
protect and improve the environment for present and future generations.
The conference adopted some important decisions, resolutions and
recommendations, viz., (i) the declaration on the human environment; (ii)
an action plan for the human environment; (iii) a resolution on Institutional
and Financial Arrangements; (iv) a resolution condemning nuclear weapons
tests especially those carried out in the atmosphere - the states were called
upon to refrain from conducting such tests as they could contaminate the
environment; and (v) the decision to refer to government's
recommendations for action at the national level. All twenty-six principles
of Declaration on the Human Environment were endorsed by the General
Assembly15. This Declaration has significance in the environmental
field, which is paralleled with the same significance as of the Universal
Declaration of Human Rights, 1948 aimed at protection of human rights
and civil liberties.
13. United Kingdom v. Albania , (1949) ICJ Rép 4.

14. The Stockholm Declaration of the United Nation Conference on the Human
Environment was adopted on June 16, 1992. See, Report of the United Nations
Conference on the Human Environment, Stockholm (1972) (UN Doc. A/Conf. 48/14
(1972)); see also, 11 ILM 1416 (1972).
15. Vide its resolution number XXVII of the 15.12.1972.

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362 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .43:3
The accompanying 'Action Plan' consisted of 109 recom

for protection and improvement of human environment. It
national and international level cooperation in identification
of environmental damages and problems of global s
Enlightened public opinion made inroads even to seek a
Constitution of India by expressly inserting provisions in
principles of state policy16. A significant fallout of this co
been in the enactment of Indian laws since 1972, chiefly Wat
and Control of Pollution) Act, 1974, Air (Prevention an
Pollution) Act, 1981, Environment (Protection) Act, 1986 an
Amendment Act, 1987.
Basel Convention 1989
In order to check the dumping of hazardous and toxic wastes and

resultant damage to the environment, the United Nations General Assembly
at its 43rd session urged all member states to take legal and technica
measures to halt and prevent the international traffic in dumping and
resultant accumulation of toxic and dangerous products and wastes.
Consequently, an expert group was set up by the United Nations
Environment Programme (UNEP) to prepare a global convention in this
area keeping the aforesaid resolution of the Assembly in mind. The
drafting process of the Global Treaty to control Transboundary movement
of hazardous wastes and their disposal began in 1987. More than hundred
countries including the members of the OAU and EEC attended the final
negotiation and approved the Convention17.
The Basel Convention is divided into 29 articles and six annexure
besides a preamble. This Convention excludes radioactive substances and
wastes which derive from the normal operations of a ship because these
are covered under existing international instruments to deal with such
substances 1 8 . It stipulates that illegal traffic in hazardous wastes is a
crime. A signatory state cannot ship hazardous waste to a non-party. A
state party to the Convention has to prohibit all persons under its national
jurisdiction to prohibit form transporting or disposing of hazardous waste.
Shipments of hazardous wastes must be packaged, labelled and transported
in conformity with the generally accepted and recognised international
rules and standards.
16. See, arts. 48A and 51A(g), the 42nd Constitutional Amendment Act, 4976.
1 7. A majority of the 1 05 out of 1 1 6 countries that attended the conference signed
vthe final Act on 22.03.89 at Basel. The convention entered into force on May 5, 1992.
India became party on June 24, 1992. See, http: //www. basel.internationa/ratif/
ratif.html. The text is also reproduced in 28 ILM 657-86 (1989).
18. Art. 1(3), Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal UNEP/1G, 80/3 4 (22.03.89).

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2001 ] ORIGIN AND GROWTH OF ENVIORNMENTAL LA W 363
The other main features of the Convention are that before an exp
country can start a shipment on its way, it must have the i
country's consent in writing and the exporting country must fir
detailed information on the intended export to the importing c
allow it to assess the risks. All transboundary movements of h
wastes have to be covered by insurance, bond or other guarant
Thus, the Basel Convention provides for timely notif
information, exchange and consultation between state parties i
to hazardous waste. The main weakness of the Convention is that it has
no central enforcing agency, but instead incorporates widely divergent
definition of hazardous wastes from member countries19. Hazardous
Wastes (Management and Handling) Rules, 1989 as amended in 2000 and
Bio-Medical Wastes (Management and Handling) Rules, 1998 under the
Environment (Protection) Act, 1986 enforced by the Ministry of
Environment and Forest, Government of India are the byproducts of this
Convention20.
Earth Summit 1992
The United Nations Conference on Environment and Development

(UNCED), popularly known as Earth Summit21 , was the most important
and largest UN conference ever held and put the world on the path of
sustainable development which aims at meeting the needs of the present,
without limiting the ability of future generations to meet their own needs.
The Earth Summit forced the people worldwide to rethink how their lives
affect natural environment and their resources. Some major achievements
of Earth Summit are reproduced in the following documents: (i) The Rio
Declaration of Environment and Development which consists a series of
principles defining the right and liabilities of states regarding protection
of environment; (ii) Agenda 21 is a comprehensive blue print for global
actions to affect the transition to sustainable development; (iii) a set of
principles to support the sustainable management of forests world wide;
(iv) the legally binding conventions, i.e., the Convention on Climate
Change and Convention on Bio-diversity which are aimed at preventing
global climate change and eradication of biologically diverse species22 .
19. See for detailed account Hackett, "An Assessment of the Basel Convention on
the control of Transboundary Movements of Hazardous Wastes and their Disposal" 5
Amer U J Int 7 L Pol 'y 291-98 (1990).
20. See also, Research Foundation for Science and Technology and Natural
Resource Policy v. Union of India , W.P. No. 657 of 1995, order dated 5.05.97.
21. Held from June 3-14, 1992 at Rio de Janeiro where more than 170 countries
participated. See, "Earth Summit" 32 ILM 882 (1992).
22. These conventions were signed- by the representatives of more than 150
countries.

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The Rio Declaration23 , in principle 13 calls upon the states

national laws regarding liability and compensation for victims
and other environmental damages. This Declaration is of utmost
to India. National Environment Tribunal Act is the direct outcome of this
Convention. The 'Precautionary Principle' is incorporated in principle 15
according to which 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.
Principle 16 of the Declaration reiterates the proposition that polluter
must pay, known as 'Polluter Pays Principle'. It also envisaged the
'Environmental Impact Assessment' as a national instrument in matters
which adversely affect the environment24 . It paves the way for legislation
affecting mass disaster with emphasis on the right to know. These principles
have found judicial recognition in landmark decisions of the Supreme
Court of India25 .
The Framework Convention on Climate Change (UNFCC) has been
further strengthened by the adoption of the Kyoto Protocol in 1997. The
purpose of this Protocol is to prevent dangerous interference with the
climate system by limiting the emission of green house gases into the
atmosphere26 .
Ill Perspective of Indian law
India is a party to most of the international conventions on

environment; hence obliged to take appropriate steps for preservation of
natural resources of the earth, as well as protection and improvement of
environment. Indian Constitution makes specific reference to
environmental protection27 . The statute book in India has several laws
relating to pollution control and environmental protection.
23. Rio Declaration on Environment & Development 1992 , 31 ILM 874-80

(1992).
24. Id ., principle 17.
25. See e.g., Indian Council for Enviro-legal etc. v. Union of India and others ,
AIR 1996 SC 1466 and Vellore Citizens 's Welfare Forum v. Union of India and
Others , AIR 1996 SC 2715.
26. The Protocol adopted at the third Conference of Parties, held at Kyoto (Japan)
on 11.1 2.97. It was decided that emission of green house gases from 1 990 level would
be reduced by 8%, 7% and 6% by European Union, America and Japan respectively.
Similarly, a target for 21 other industrial countries was fixed for reducing emission
of green house gas. These targets are to be achieved in between 2008 and 2012. The
developing countries expressed the view that their economic conditions do not permit
them to accept such commitments. Therefore, the developing countries like India and
China were exempted from such commitments. USA is not a signatory öf this
protocol. See, 37 ILM 22-43 (1998).
27. See e.g., arts. 21, 47, 48-A and 51-A(g).

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200 1 ] ORIGIN AND GROWTH OF ENVIORNMENTAL LA W 365
During the British period, legal control of environmental po

began with the enactment of the Indian Penal Code of 1860. Sec
of the code provides that whoever voluntarily corrupts or fouls t
of any public spring or reservoir, so as to make it less fit for the
for which it is ordinarily used, shall be punished with simple or
imprisonment for a term extending to three months or with f
hundred rupees or with both. The code also provides that w
voluntarily vitiates atmosphere in any place so as to make it "nox
the health of the persons in general dwelling or carrying on bu
the neighbourhood or passing along a public way, shall be punis
fine upto five hundred rupees28 . Pollution of water could a
offence under sections 269, 288, 290 and 425 of the code. Sectio
and 144 of the Criminal Procedure Code, 1898 as amended, empo
specified magistrates to take immediate measure to prevent
noxious activities or public nuisances. British India had a number
enactments also on pollution control, mainly dealing with three
namely, regulation of factories29 , preservation of forests30 and prot
of animals and wildlife31 .
The Northern India Canal and Drainage Act, 1873 and the Eas
Irrigation and Canals Act, 1859 regulated the water supply of the
It prohibits corrupting and fouling of water of any canal. This le
extended legal protection to water meant for irrigation purposes. P
laws protected fisheries. The Shore Nuisances (Bombay and Kolab
1853 empowered the Collector of Land Revenue to direct a p
remove nuisance anywhere below high water mark or to get it a
removed himself32. The Oriental Gas Company Act, 185
relevant33 . It prescribed penalty for fouling water or corrupting
authorised a person to dig up the grounds and examine pipes and
for the water of the gas company to ascertain any leakage causi
pollution. The Sarais Act, 1867 imposed a duty on inn-keepers
28. S. 278, Indian Penal Code, 1860.

29. See, Boilers Act, 1923; Explosives Act, 1884; Explosive Substan
1908; Petroleum Act, 1934; Motor Vehicles Act, 1939 and Poisons Act, 19
30. Cattle Tresspass Act, 1871; Destructive Insects and Pests Acts, 1914
31. E.g., Elephant Preservation Act, 1879; Fisheries Act. 1897.
32. Smoke Nuisance Act (Bengal 3), 1905 and Smoke Nuisance Act (Bom
1912 on smoke nuisance are also noteworthy. Madras Town Planning A
Calcutta Improvement Act, 1911; Bengal Public Parks Act, 1904; Madra
Conservation Act, 1882; Hyderabad Forest Act, 1835 and Mysore Forest A
fell in this area.
33. See, Act 5 of 1857. Ss. 15 and 17 of the Act prescribed penalty whe
was fouled or corrupted. Section 1 8 authorised a person to dig up the gro
examine pipes and conduits and works of the gas company for the pur
ascertaining any leakage causing water pollution.

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water fit for human and animal consumption. The Fair Way
the Indian Ports Act, 1908, and the Inland Vessels Act, 1917,
with pollution of waters. Polluting by poisoning water in a fo
made punishable by section 26 (i) of the Forest Act, 1927.
Section 28(d) of the Easement Act, 1882, is restrictive on t
right to pollute the water as is evident from illustrations (f),
section 7 which limits the right to 'unreasonably pollute' or ca
injury to other'. Common law remedies were also available un
of torts. The most important tortuous remedies are: (i) nuisa
trespass35 ; (iii) negligence; and (iv) strict liability.
Constitutional mandate
Environmental law has found special mention in the Indian

Constitution. Prior to the 42nd amendment, environmental protection was
availed through article 21 of the Constitution. Article 21 runs thus: 'No
person shall be deprived of his life or personal liberty except according
to procedure established by law'. It ensures to every person the fundamental
right to life and personal liberty36 . Justice P.N. Bhagwati in Francis
Coralie v. Union Territory of Delhi 37 stated:
We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing, shelter
over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and
commingling with fellow human being.
In Subhash Kumar v. State of Bihar 38 , the court observed:
Right to live is a fundamental right under Article 21 of the

Constitution and it includes the right of enjoyment of pollution
free water and air for full enjoyment of life. If anything endangers
or impairs that quality of life in derogation of laws, a citizen has
the right to have recourse to Article 32 of the Constitution for
34. See, J.C. Gulstaun v. Dunia Lai Seal , (1905) CWN 612. See also, Rambaj
Sirigh v. Babulal , AIR 1982 All 285 and Smith v. Satro Milling Company , 1 8 Fd 736
(1927):
35. Most of the important aspect of pollution control where trespass is used as the
theory of action have been discussed by court in many cases, e.g. Arvidson v.
Reynolds Metal Company , 125 F. supp. 481 (W.D. Wash., 1954).
36. Maneka Gandhi v. Union of India , AIR 1978 SC 597.
37. AIR 1981 SC 746.
38. AIR 1991 SC 420.

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removing the pollution of water or air which may be detrime

to the quality of life.
Maneka Gandhi39 case has added further dimension to the c

A law affecting life and liberty of a person has to stand the sc
articles 14 and 19 of the Constitution and the procedure laid do
be reasonable, fair and just. This case has broadened the scope of
life and therefore it included many things which are essential for
for example, clean air, water and healthy environment.
In Oleum gas leak 40 case, the Supreme Court once again imp
treated the right to live in pollution free environment as part of fun
right to life under article 21 of the Constitution.
In Charan Lai Sahu v. Union of India 41 , the Supreme Court o
while upholding the validity of Bhopal Gas Leak Disaster (Proces
Claims) Act, 1985 held that "in the context of our national dimen
human rights, right to life and liberty, pollution free air and w
guaranteed by the Constitution under Article 21...". In A. P. State
Control Board v. Prof. M. V. Naidu41 , the observation made by
M.J. Rào is worth quoting in this regard:
Environmental concerns . . . are in our view of equal importa

as Human Rights concerns. In fact, both are to be traced to Ar
21 which deals with fundamental right to life and liberty. Wh
environmental aspects concern 'life', human rights aspects conc
'liberty'.
The high courts have also dealt with the environmental aspect
underlying article 21. In T. Damodar Rao43 , the Andhra Pradesh High
Court has held that the enjoyment of life embraces the protection and
preservation of nature's gifts, without which life cannot be enjoyed. A
slow poisoning by a polluted atmosphere should be equated with acts
which directly violate article 21. Similarly, in L.K. Koolwal v. State of
Rajasthan 44 , the High Court of Rajasthan also observed that "maintenance
of health, preservation of sanitation and environment falls within the
preview of Article 21 of the Constitution as it adversely affects the right
of the citizens and amounts to slow poisoning and reducing the life of the
citizens because of the hazards created if not checked". Also the High
39. Supra note 36.

40. M.C. Mehta v. Union of India, AIR 1987 SC 1086. See also, AIR 1987 SC 965.
41. (1990) 1 SCC 613. See also, MC. Mehtav. Union of India, (1992)3 SCC 256
and Dr. Ashok v. Union of India, (1997) 5 SCC 10.
42. AIR 1999 SC 812.
43. T. Damodar Rao v. Special Officer M.C. Hyderabad, AIR 1981 AP 171.
44. AIR 1988 Raj 2.

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Courts of Allahabad45 , Himanchal Pradesh46 and Kerala4

that environmental degradation violates fundamental right t
The directive principles of state policy also provide for pre
health hazards. Article 47 of the Constitution declares that the state has
a duty to prohibit hazardous activities and directs the state to remove
unsanitary conditions. Writs have been admitted by the Supreme Court
directly where pollution affected the public at large, e.g., pollution of the
river Ganga48 , ecological imbalance49 , etc. The improvement of public
health will also include the protection and improvement of environment
without which public health cannot be assured. The Supreme Court has
also affirmed this right in various decisions50 . vSimilarly, the high courts
may find it a paramount principle as primary duty of governance5 1 .
It may be noted that the distribution of legislative power is given in
three lists in schedule VII of the Constitution. Environmental pollution as
such is not specifically mentioned in the legislative entries. Under article
252, if the houses of the legislature of two or more states pass resolutions
empowering Parliament to legislate on any of the matters in the state list,
then Parliament can do so. Any Act so passed by Parliament may be
amended or repealed by Parliament and not by the legislature of the state
or states, as the case may be. Article 253 of the Constitution also empowers
the 'Parliament to make any law for the whole or any part of India for
implementing any treaty, agreement or convention with any other country
or any decision made at any international conference, association or other
body. This power extends to matters in the state list, treaties and
agreements. Article 253 gives Parliament power to legislate on many
matters relating to environment, if covered by international conventions,
etc. Under this power the Parliament enacted the Air (Prevention and
Control of Pollution) Act, 1981 and the Environment (Protection) Act,
1986.
Entries 7 and 52 of list I deal with power of Parliament in respect to

industries, the control of which is declared by Parliament by law to be
expedient in the public interest and industries declared by law to be
necessary for defence purposes. The state legislature has the exclusive
45. S.K. Garg v. State ofU.P.< AIR 1999 All 41.

46. Kinkri Devi v. State of Himanchal Pradesh , AIR 1988 HP 4.
47. F.K. Hussain v. Union of India , AIR 1990 Ker 321; see also, P.A. Jacob v.
Suptd. of Police, Kottayam , AIR 1993 Ker 1; Malvi v. Tilkan, 1988 (3) KLT 730.
48. M.C. Mehta v. Union of India, AIR 1988 SC 1115.
49. Rural Litigation and Entitlement Kendra, Dehradun v. State of UP. , AIR
1988 SC 2187.
50. See e.g., Consumer Education and Research Center v. Union of India, AIR
1995 SC 922.
51. See e.g., K.C. Malhotra v. State ofM.P ., AIR 1994 MP 48.

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200 1 ] ORIGIN AND GROWTH OF ENVIORNMENTAL LAW 369
legislative power over the rest of industries under entry 2452 .

Constitution (Forty-Second Amendment) Act, 1976 has in
specific provision relating to the environment. It added a new
principle of state policy for the protection of environment, art
which requires the state to make an endeavour to protect and im
environment and to safeguard the forests and wildlife of the co
the chapter on 'fundamental duties', article 51-A(g) requires th
'to protect and improve the natural environment, including fore
rivers and wildlife and to have compassion for all creatures53 .
These directives have been read as complementary to the fun
rights54 . In several environmental cases55 , the courts have be
by article 48-A and 51-A(g) of the Constitution. In Sachidanand
v. State of West Bengal 56 , the Supreme Court pointed out that
a problem of ecology is brought before the court, the court is
bear in mind article 48 A and 51A(g) of the Constitution. T
observed:
When the Court is called Upon to give effect to the Directive

Principle and the fundamental duty, (articles 48-A and 51A(g) in
this case), the Court is not to shrug its shoulders and say that
priorities are a matter of policy and so it is a matter for the policy
making authority. The least the Court may do is to examine
whether appropriate considerations are borne in mind and
irrelevancies excluded. In appropriate cases, the Court may go
further, but how much further must depend on the circumstances
of the case. The Court may always give necessary directions.
However, the Court will not attempt to nicely balance relevant
considerations. When the question involves the nice balancing of
relevant considerations, the Court may feel justified in resigning
itself to acceptance of the decision of the concerned authority.
From the above it is evident that the Supreme Court can take affirmative
acťion commanding the other organs of the state, i.e., legislature and
52. List II. Hazardous industries may be controlled and regulated under list I,
entries 7 and 52 and also under entry 24 in list II.
53. Art. 48-A : "The State shall endeavour to protect and improve the environment
and to safeguard the forest and wildlife of the country". Article 51-A(g) casts a
fundamental duty on every citizen in these words: "It shall be the duty of every citizen
of India to protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures".
54. Som Prakash Rekhi v. Union of India. AIR 1981 SC 212.
55. See e.g., M.C. Mehta v. Union of India, AIR 1988 SC 1037; Rural Litigation
and Entitlement Kendra, Dehradun v. State of U.P. , AIR 1988 SC 2187.
56. AIR 1987 SC 1109.

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370 JOURNAL OF THE INDIAN LA W INSTITUTE [ Vol . 43 : 3
executive, to comply with the statutory obligation of pr

improving the environment. However, if the government i
various considerations requiring thoughts and deliberation an
at a cautious decision after taking them into account, it may
for the court to interfere in the absence of malafides.
In Delhi Vehicular Pollution 57 case, the Supreme Court
the problem of air pollution caused by motor vehicles operat
Specific reference was made to articles 48 A and 5 1 A(g). Th
a number of directions for educating the public on tele
schools. The judgment may be viewed as enforcing the right
to receive information [article 19(l)(a), and 21 of Constit
equating the citizen's duty to protect the environment [art
with the right to a wholesome environment discussed in Subhash
With the precedent of Subhash Kumar behind it, the court
Vehicular Pollution 59 case, directed the Ministry of Envir
Forests to form a Committee, for assessing available technol
cost alternatives for operating vehicles and mak
recommendations on pollution control regulations.
The Andhra Pradesh High Court has observed that a
imposes an obligation on the Government, including the
protect the environment60 . The High Court of Himacha
57. See, M.C. Mehta v. Union of India , W.P. No. 13029 of 1985,
14.2.96 and 21.10.98.
58. See, supra note 41.
59. On a petition filed regarding vehicular pollution in the country, the Supreme
Court of India in a far reaching order of 21.10.1994, directed the union government
to provide lead free petrol to four metropolitan cities, namely, Delhi, Bombay, Madras
and Calcutta from 01.04.1995 and to supply petrol with a maximum lead content of
0. 1 5 g/lt in the entire country by December, 1 996. Later the court also asked the Union
government to convert all government vehicles and public transport to run on CNG
fuel or on lead free petrol with catalytic converters. A further development is a pilot
project study being undertaken under the order of the court to use propane as fuel for
two wheelers and three wheelers. The court has now banned the sale of leaded petrol
altogether. It has also banned the plying on Delhi roads of all commercial vehicles that
are more than 15 years old. Further the court also gave directions for conversion of
all the buses to CNG mode by 30.09.01 in city of Delhi. The court ruled that after
01 .04.01 no commercial vehicle would be registered in Delhi which does not conform
to the court s order dated 28.7.98. It directed the Bhure Lai Committee to examine the
viability of low sulphur diesel as clean fuel {M.C. Mehta v. Union of India, JT 201
(4) SC 2001). The apex court in its order dated 28.9.2001 extended the time till
18. 10.2001 for converting entire city bus fleet (state carriage and contract carriage)
into single fuel mode using CNG subject to certain conditions. Recently, in its order
dated 18.10.2001 the apex court extended the deadline till 31.01.2002 for conversion
of the capital's bus fleet to the CNG mode. It rejected the request for a mixed fleet of
public transport vehicles.
60. Supra note 43 at 181.

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described these constitutional imperatives as a pointer to the sta

only to protect, but also to improve the environment61 . The cas
have been decided by the apex court indicate that protection of enviro
and related issues have been interpreted in the context of the righ
under article 21 or under articles 48 A and 51-A(g) of the Constit
Specific legislative journey
The concern over the state of environment has grown the wor
since the sixties. The decline in environmental quality has been ev
by increasing pollution, loss of vegetal cover and biological di
excessive concentration of harmful chemicals in the ambient atm
and in food chains, growing risks of environmental accidents an
to life support systems. From time to time various legislations re
protection of environment from specific types of pollution hav
passed by the Indian legislature.
Before the Stockholm Declaration, we find many scattered pro
in the various legislations of British and Independent India63 . S
enactments relevant to the laws dealing with water management
These include the laws relating to Boards, Inter-State Water Disp
Floods in Assam64 . In the early decades of independence, water p
laws were put on the statute book of many states. In the state o
for the first time a statute exclusively dealing with water pollu
passed 65 . This was followed by the state of Maharashtra in 19696
Maharashtra Act was taken as the model for an all India water p
control strategy in 197467 .
Even the Code of Criminal Procedure, 1973, which contain
general provisions to cover ordinary situations68 , came to be reg
61. General Public ofSproon Valley v. State of Himachal Pradesh , AIR

52 at 60. See also, D.D. Viyas v. Ghaziabad Development Authority y AIR 1 99
62. See e.g., Unni Krishnan v. State of A. P., AIR 1993 SC 2178; A
Statutory Corp. v. United India Labour Union , (1997) 9 SCC 377; Life In
Corp. of India v. Manubhai D. Shah , AIR 1993 SC 171; Virendra Gaur v
Haryana , (1995) SSC 577; Indian Council for Enviro-Legal Action v. Union
(1996) SCC 281; Dr. Ashok v. Union of India, (1997) SSC 10.
63. See e.g., Atomic Energy Act, 1962; Inflammable Substances Ac
Explosives Act, 1908; Insecticides Act, 1968; Mines Act, 1952; Factories A
Merchant Shipping Act, 1958 and Industries (Development and Regulati
1951.
64. See, River Boards Act, 1956; Inter-State Water Disputes Act, 1957
Embankment and Drainage Act, 1954.
65. Orissa River Pollution Prevention Act, 1953.
66. Maharastra (Prevention and Control of Water Pollution) Act, 1969.
67. Water (Prevention and Control of Water Pollution) Act, 1974.
68. Ss. 133 and 144, Code of Criminal Procedure, 1973.

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an instrument to combat pollution in the 1980's and wa

Municipal Council, Ratlam v. Vardhi Chand69 .
Stockholm Declaration, did indeed accelerate the pace of
environmental legislation in India. Current efforts are aimed at
consolidating and coordinating the pollution laws to meet the challenges
of growing menace of pollution related problems. Important laws in this
area include, Water (Prevention and Control of Pollution) Act, 1974. In
pursuance of clause 1 of article 252 of the Constitution, resolutions were
passed by the house of the legislatures of the States of Assam, Bihar,
Gujarat, Haryana, Jammu and Kashmir, Karnataka, Kerala, Madhya
Pradesh, Rajashthan, Tripura and West Bengal to the effect that the
matters relating to prevention and control of water pollution should be
regulated by the Parliament by enacting the law. Accordingly the
Parliament enacted the Water (Prevention and Control of Pollution) Act,
1974. The Act aims to provide for the prevention and control of water
pollution and the maintaining or restoring of wholesomeness of water.
This Act also provides for a clear and broad definition of water pollution,
the Water Board to prevent water pollution; the water- testing laboratory
and the Government analyst. The penalties prescribed are three months
imprisonment or/and fine of five thousand rupees. The basic features of
the Act are: (i) establishment of central and state boards for the prevention
and control of water pollution; (ii) conferring on and assigning to such
boards powers and functions relating thereto and for matters connected
therewith; (iii) provisions on penalties for the contravention of the
provisions of the Act; and (iv) to establish central and state water testing
laboratories to enable the board to assess the extent of pollution, lay down
standards and establish guilt or default. The Water (Prevention and
Control of Pollution) Cess Act was also passed in 1977.
After the Water Acts, Parliament passed the Air (Prevention and
Control of Pollution) Act, 1981. This is also a sequel to Stockholm
Conference. The major objectives of the Act are: (i) to provide for the
prevention, control and abatement of air pollution; (ii) to provide for the
establishment of central and state boards, with a view to implement the
aforesaid purpose; and (iii) to provide for conferring on such boards
powers and assigning to such boards functions relating thereto. The
Water Act and the Air Act both contain provisions restraining industries
from contaminating the environment70 .
69. AIR 1980 SC 1622.

70. See, s. 21, Air (Prevention and Control of Pollution) Act, 1981 and s. 25,
Water (Prevention and Control of Pollution) Act, 1974.

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200 1 ] ORIGIN AND GROWTH OF EN VIORNMENTA L LA W 373
Tiwari Committee Report 1980 and later developments
The Government of India constituted a high-powered com

under the chairmanship of the Deputy Chairman of Planning Com
Shri N.D.Tiwari. The committee submitted its report in Septemb
with far-reaching recommendations. The committee71 noted
many of the laws related to environment are outdated; (ii)
statements of explicit policy objectives; (iii) they are mutually inc
(iv) they lack adequate provisions relating to implementing mac
(v) There is absence of procedure for reviewing the efficiency of
The main recommendations72 of the committee, inter alia, incl
comprehensive review or reformation of some central and state
(ii) new legislation for areas of action not covered by the presen
such as those concerning toxic substances; and (iii) the introduc
environment protection in the concurrent list of the seventh sc
Though the water and air Acts were passed immediately a
Stockholm Conference but no comprehensive legislation cov
aspects of preservation of environment was enacted. This was d
in 1986 by passing in the Environment (Protection) Act, 1986 (E
purpose of the EPA was to implement decisions of the Sto
Conference in so far they relate to the protection and improveme
human environment and the prevention of hazards to human bein
living creatures, plants and property. The main objectives of the
(i) to implement the decisions made at the Stockholm Conferen
enact general law on environmental protection which could fulfi
the areas of major environmental hazards as the existing laws g
focused on specific kinds of pollution or on specific categories of
substances and some major areas of environmental hazards w
covered; (iii) to co-ordinate activities of the various regulatory
under the existing laws and creation of an authority or authori
environment protection; and (iv) to provide for deterrent punish
those who endanger human environment, safety and health.
The EPA is thus an umbrella legislation to provide a framewo
the central government to coordinate the activities of various ce
state authorities established under previous laws, such as Water
Air Act. It is also an 'enabling' law, which articulates the e
legislative policy of environment protection and change in emph
71. Report of the Committee for Recommending Legislative Measur

Administrative Machineries for Ensuring Environment Protection ( Th
Committee Report ) Department of Science and Technology, Government of
24 (1981). Tiwari Committee had revealed that there were nearly 200 envi
legislations in India.
72. Id. at 24.
73. Such as Insecticides Act, 1968; Water Act, 1974 and Indian Forest Act, 1927.

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narrow concept of pollution control to the wider aspect of e

protection. The exhaustive definition of environment wh
water, air and land and the interrelation which exist among
water, air and land, other human creatures, plants, micro-or
property gave a véry good impression. However, deeper scrut
that the legislation has several missing links. Only a wide ne
over the pollution laws not covered by other laws. All that t
done is to arm the central government for comprehensiv
environment pollution by industrial and related activities of
Section 24 of EPA makes the penal provision redundant b
the scope and propose of the Act. This section postulates tha
offence under this Act is also an offence under any other Act, th
is to be punished only under the other Act. The Factories Act,
Act, the Forest Act, the Insecticides Act and host of other l
coyering almost every aspect of environment are availab
where an offender under the EPA is also an offender under
Act(s) shall be punished only under such Act and thereby re
EPA to be meaningless. Though the Water Act and the Ai
give common man the locus standi to initiate action but secti
Environment Protection Act gives a right to move the court
requires that notice of not less than 60 days be given to the
alleged offence and intention to prosecute. The provision
purpose through prior intimation.
The Act has a shortcoming in leaving out what the United
calls Environment Assessment Statement. This shortcoming
to be removed through delegated legislation74 by making
public hearing for environmental clearance of certain projects7
subsequently the ministry decided that such participati
dispensed with if public interest so demands76 . Accordingly,
of public has been made to suffer in the name of public int
By far, the Supreme Court has viewed that the purpose o
was only to create authority u/s 3(3) with adequate powers to
protect the pollution77 . In general, the courts have also inter
provisions too together with subordinate legislation made th
enforce abatement of pollution78 . The law of environment
stage of evolution in India.
74. A notification by the Ministry of Environment and Forest, Go

India was issued on 27.01.94 under EPA (S.O. 60(E) 27.1.94 II 3 (i) Ex
75. This list includes major projects like nuclear power projects,
projects, mining projects, thermal power plants etc. The list includes
76. S.O. 356(E) 4.5.94 II 3 (i) Extra SI. 225.
77. Vellora Citizens Welfare Forum, supra note 25.
78. See e.g., S. Jagannatha v. Union of India and others , (1997)

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Control of pollution from hazardous substances and proces
Provisions relating to hazardous substances and processes are

over several enactments. The Indian Explosives Act, 1884^ regu
manufacture, possession, use, sale, transport and importation
sives. The Poisons Act, 1919, regulates the importation, possess
sale of poisonous substances. The Drugs and Cosmetics A
prohibits the import of drugs and cosmetics of sub-standar
misbranded drugs and adulterated or spurious drugs. The In
Act, 1968, regulates the import, manufacture, sale, trans
distribution of insecticides. Its object is preventing the risk to
beings and animals.
The Tiwari Committee had also recommended enactment of a law
concerning hazardous substances. The Bhopal tragedy brought to the fore
the need for urgent legislative action in this regard. The EPA was passed
to tackle inter alia problem of pollution incorporating hazardous substances
and its effects.
The major provisions in the EPA pertaining to management of

hazardous substances achieve: (i) laying down of procedures and
safeguards for the prevention of accidents and handling hazardous chemi-
cals; (ii) notifying rules for prevention of accidents and procedures,
safeguards, prohibitions and restrictions on handling of hazardous
chemicals; and (iii) holding the occupier responsible for prevention,
intimation and interrogation of accidents and its after-effects.
The rules, promulgated under the EPA constitute the major regulatory
regime relating to hazardous substances. These are:
(i) Hazardous Wastes (Management and Handling) Rules, 1989.

(ii) The Manufacture, Storage and Import of Hazardous Chemical
Rules, 1989.
(iii) Manufacture, Use, Import and Storage of Hazardous Micro-

organisms/Genetically Engineered Organisms or Cells Rules,
1987.
(iv) Chemical Accidents (Emergency Planning and Preparedness

and Response) Rules, 1996 which have been notified as
complements to the Manufacture Storage, Import of Hazardous
Chemical Rules, 1989.
The Rules provide for crisis management at local, district, state and
central levels. A set of guidelines as supportive documents for industries,
implementing agencies and the general public were issued by Hazardous
Substance Management Division (HSMD) of the Ministry of Environment

27.7.96.24 on Fri, f:ffff on Thu, 01 Jan 1976 12:34:56 UTC
and Forests (MOE&F), Government of India79 . To regulate tra

of hazardous chemicals by road, with a view to prevent accide
extent of adverse phase-out of chemical spills that may occu
rules, as suggested, have been incorporated in the Central Mot
Rules, 1989. A Guide to Safe Road Transport of Hazardous
1995 has also been issued by the HSMD of MOE&F.
Hazardous Wastes (Management and Handling) Rules, h
not extend to hospital wastes. An effort to regulate hospital
been initiated with notification of Bio-Medical Wastes (Mana
Handling) Rules, 1998 under EPA. The concern over the impl
of Basel Convention has also been reflected in this set of rules
set of rules has also been recently notified. These rules ar
Municipal Solid Wastes (Management and Handling) Rules
management and disposal of hazardous wastes have also been
under Atomic Energy Act, 1962 and Merchant Shipping Act,
Workmen are most vulnerable to the dangers of hazardous
and processes. As they are in close contact with these substa
generally develop various health problems due to continuous
these substances. It was only after the Bhopal disaster that t
regulating the handling of hazardous substances and processes
arose. In the wake of Oleum gas leak tragedy preceded by the
Bhopal gas disasters, the Factories Act, 1948 was amended in
79. See, A Guide to Manufacture Storage and Import of Hazardo

Rules ( 1 989). See also, Guidelines for Management ( 1 992) and Handlin
Wastes ( 1 99 1 ).
80. In Research Foundation for Science, Technology and Natural
Policy v. Union of India , (CWP No. 657 (1995)), Supreme Court by a
05.05.97 has directed that:
(2) with effect from today, no authorization/permission would be
for the import which have already been banned by the Central Govern
or by any other authority;
(3) with effect from today, no import would be made or permitted by
authority or any person of any hazardous waste that is already b
under the Basel Convention, or to be banned hereafter, with effect
the date specified therein.
It is to be noted that by this interim order the court has taken note
problem of import of hazardous wastes. By direction (3) it has given
Basel Ban decision prohibiting trans boundary movement of hazardou
OECD countries to non-OECD countries. See also, M.S. Harshvard
Union of India , (Civil Court Writ petition no. 67 of 1996 before the
Delhi, order dated 1.04.96) and All India Lawyers Union , (Delhi Unit
India , (C W 9351/2000 in C W 3678/1999 orders dated 10.7.200
12.9.2000 and 29.1 1.2000). /
8 1 . Discussion and decisions in detail are to be found in the forthcomin
of Indian Law Institute Legal Regulation of Hazardous Substances and
India by the author.

27.7.96.24 on Fri, 05 Aug 2022 19:10:40 UTC
200 1 ] ORIGIN AND GROWTH OF EN VIORNMENTA L LAW 377
to include a new chapter on industries which use or produce h

chemicals or which undertake hazardous processes. The Fac
inserted chapter 4 A which contains sections 41 A - 41H which r
occupier of the factory to disclose all information relating to th
substances to workers and draw up an on-site emergency p
detailed disaster control measures and keep other records.
relating to workers' participation in safety management of
processes is an innovative measure. A list of industries involving
processes has been specified. For the first time, this amendment
into legislation a right to information of the workers in the factor
persons residing in the vicinity. The right of resident to know
with a disaster has also been given recognition.
In order to ensure consistency and uniformity in the makin
by the state governments, the Ministry of Labour, Governme
in consultation with Directorate - General Factory Advice Serv
Labour Institute (DGFASLI)82 has prepared a set of model r
rule making power under the Factories Act is in the hands of
governments. The draft model rules are also deliberated u
conference of the chief inspectors of factories of the various
union territories before they have been finalized. However, so
are yet to notify model rules.
Rules similar to model rules have been notified by the Min
Environment and Forest known as Manufacture, Storage and I
Hazardous Chemicals (MSIHC) Rules in 1989 and amended in
2000. The reason for this duplicity in rules on similar subjects
by MOE&F and the Labour Ministry, can only be answere
concerned ministries. The dual regime of rules has resulted
choosing one or other model for undisclosed reasons. The secon
the draft rules sent by the Ministry of Labour to the states for not
is known as Control of Indian Major Accidents Hazards (CIM
199083 .
Besides many pollution laws as noted above, some anti-pollution

activities are not covered under any of the legislations till date for
example, the Jawalapuri and Krudumpuri accidents where 20 PVC market
and plastic re-processing units were burnt. It was because the (i) episodic
air pollution or accidental air emissions are not covered under the Air
82. For details see, Standard References {Notes DGFASLI Organisations 1998-
2000) and Ministry of Labour, Government of India, Annual Report 1995-96 to 2000-
2001.
83. These legislations relating to safety and health, their model rules and rules
notified by various states are exhaustively discussed in the above mentioned study
(see, ibid.); see also, background paper on National Workshop organised by Indian
Law Institute on 'Regulation for Hazardous Substances and Processes' (November -
December, 1998).

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378 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol . 43 : 3
Act; (ii) MSIHC Rules under the EPA do not cover such inci
processing is not an industrial activity; (iii) since, the indu
was carried out in a small cottage units, therefore, no
required to undertake it and consequently the units were no
the Factories Act too; and (iv) since, no effluent to any wa
being discharged, the regulatory regime of the Water Act
applicable.
Liability and compensation
The Supreme Court of India was called upon to evolve norms and
principles for determining the liability of large enterprises engaged in
manufacture and sale of hazardous product and the basis on which damages
in case of such liability should be quantified. The rule of strict liability
upheld in Rylands v. Fletcher M case has been holding the field for over
a century until the path breaking judgment of Oleam Gas Leak Case 85 .
This decision is significant as it brings to fore various aspects of law
governing hazardous substance. It was held that enterprise which is
engaged in hazardous or inherently dangerous nature of activity must
provide highest standard of safety and if any harm resulted from such
activity, the enterprise must be absolutely liable to compensate. In final
pronouncement of this case some of the doctrines developed by the court
have attracted debate. The court ruled that no exceptions to the rule of
strict liability as laid down in Fletcher's 86 case would apply in such
cases. The amount of compensation to be awarded will depend upon the
magnitude and capacity of the enterprise because such compensation
must have a deterrent effect. The court adopted an approach which is
termed as the deep pocket theory.
In the Bhopal Gas Leak case,, tort litigation took a new turn in India,
with the involvement of multinationals87 . However, the Supreme Court
missed a chance to decide about the liability principles, instead a settlement
was arrived at for a sum of US$ 470 million with the liability on past,
present and future claims remaining open88 . The Oleam Gas leak case as
well as Bhopal litigation has also brought to fore the question of extent
84. LR 3 HL 330.
85. M.C. Mehta v. Union of India, AIR 1987 SC 965.
86. Supra note 84.
87. Out of the many issues that cropped up in this litigation, the main issue was
as to who had to bear the responsibility of disaster, its nature and the extent of
liability? After a long sojourn in the courts of the U.S.A., the District Court of Bhopal
ordered an interim compensation of Rs. 350 crores, which was reduced by the M.P.
High Court to Rs. 250 crores.
88. Union Carbide Corporation v. Union of India, AIR 1990 SC 273.

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200 1 ] ORIGIN AND GROWTH OF ENVIORNMENTA L LAW 379
of compensation to be given to the victims of an industri

Though the absolute liability principle attracted currents and cross
the Supreme Court has Tepeatedly ruled it as a settled law of
Bichari 89 case.
Keeping in view the apex courts' above mentioned obs
regarding liability it was inevitable to ensure how the lia
translated into immediate relief for victims. Thus the issue of insurance
which had attracted the attention of the west has been considered by the
legislature in this country. This is the reason why the Public Liability
Insurance Act, (PLIA) was enacted in 1991 to provide public liability
insurance for the purpose of providing immediate relief to the persons
affected by the accidents occurring while handling the hazardous
substances and for matter connected therewith or incidental thereto. The
Act is the outcome of Bhopal Tragedy and for the first time acknowledge
the principle of no-fault liability. The Act provides that the owner shall
be liable to suitable relief where death or injury to any person or property
has resulted from an owner who has been defined as a person having
control over the handling of the substance. The Act makes it mandatory
for every owner to take out insurance policies to insure himself against
liability to give relief before he starts handling any hazardous substance.
The Act prescribes a detailed procedure for the notification of an accident
and the grant of relief to affected persons. It also prescribes severe
penalties for failure to take out an insurance policy. This Act is
comprehensive with respect to the liability of the owner for injury caused
due to handling of hazardous substances. By an amendment in 1992,
Environmental Relief Fund was established to supplement the insurance
coverage. In the event of any insufficiency in insurance coverage, the
collector can draw from the Fund.
The PLIA specifies the maximum amount of interim compensation
payable to the victim. The extent of owner's liability has been specified
and no evidence to prove liability is required. However, victim has still
to provide evidence of entitlement. The hardship caused to the victim by
the necessity of providing this genre of evidence needs to be recognised
and assessed.
The National Environment Tribunal Act, 1995 (NETA) is a step

forward to recompense the victims through environmental tribunals. In
order to implement the decisions of the UN Conference on Environment
and Development held at Rio de Janeiro in June 1992 in which India
participated, the National Environment Tribunal Act, 1995, was enacted,
inter alia , (i) to provide for strict liability for damages arising out of any
accident occurring while handling any hazardous substances; (ii) for the
establishment of a National Environment Tribunal for effective and
89. Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

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expeditious disposal of cases arising out from such accidents

giving relief and compensation for damages to persons, prope
environment and for matters connected therewith or incident
Location siting and shifting of industries
Various important notifications have also been made unde

in order to prohibit hazardous Industrial activities like storage
in Antop Hills, Bombay at Ware House Complex and categ
various industries as well as prohibition of certain activit
regulation zone91 .
In M. C. Mehta v. Union of India92 , the Supreme Court di
168 hazardous industries cannot be permitted to operate in De
should be relocated/shifted to any other industrial estate in
implement the decision, the apex court gave the directions o
December 7, 200093 . Keeping in view these decisions, a natio
and a workable criterion for shifting, siting and relocation of suc
should be worked out. Illustratively a Manual on Emergency P
for Chemical Hazards 94 , prepared and published by the HSM
suggested a criterion for siting of hazardous industries and a
are under process of notification in this regard. However, th
Environment and Forest has also issued a draft notification o
1999 know as Environment (Siting of Industries) Rules, 1999
90. See for details, Furqan Ahmad, "National Environment Tribunal B

CLA 150 (1994).
91. See, S.O. 136(E) 9.2.90 II 3(ii) Extraí/. 76 and S.O. 595 (E) 1
Extra SI. 406.
92. 1996 (5) SCALE 21.
93. M.C. Mehta v. Union of India, 2000(8) SCALE 363.
94. Ministry of Environment and Forest, Government of India, Manual on
Emergency Preparedness for Chemical Hazards 7 (1992).
95. The draft rules propose to prohibit/regulate the relocation of identified industries
in proximity to identified ecologically and environmentally sensitive areas including
National Parks/Sanctuaries, wetlands, archaeological monuments and human
settlements. A large number of objections and suggestions have been received in
response to the notification. In order to afford an opportunity for personal hearing, a
series of hearings have been held in which NGOs, industry associations, state
governments and central departments participated. Steps are under way to finalize the
notifications. (See, S.O. 420 (E) 21 .6.99 II 3(ii) Extra SI. 506). As far as categorization
of hazardous industries is concerned, the decision of the Supreme Court in Indian
Council for Enviro-Legal Action v. Union of India and others , 1996 (2) SCALE 443
is worth mentioning in which it was observed that no distinction should be made
between a large scale hazardous industry and a small scalę hazardous industry. All
chemical industries should be allowed to be established, only after taking into account
all the environmental aspects and their functioning should be monitored closely to
ensure that they do not pollute the environment around them.

27.7.96.24 on Fri, 05 Aug 2022 19:10:40 UTC
2001 ] ORIGIN AND GROWTH OF ENVIORNMENTAL LAW 381
Accordingly, the National Environment Appellate Authority

passed in 1997 with the object "to provide for the establish
National Environment Appellate Authority, to hear appeals wi
to restriction of areas in which any industries, operations or p
class of industries, operations or processors shall not be ca
subject to certain safeguards under the Environment (Protect
1986 and for matters connected therewith or incidental thereto". The
central government is required to establish the National Environment
Appellate Authority. Section 11(1) of the Act provides any person
aggrieved by an order granting "environmental clearance" in the areas in
which industries, operations or processors shall not be carried out or shall
be carried out subject to certain safeguards, may appeal within 30 days to
the authority mentioned above. 'Environmental clearance' is intended to
mean a clearance required by or under the EPA. The composition of the
authority is provided in sections 4 and 5 of the Act which shall comprise
maximum of five persons to be constituted by the central government out
of which the chairperson must be a person who has been a judge of the
Supreme Court or chief justice of a high court. Jurisdiction of other civil
courts or other authorities to entertain any appeal in respect of a matter
to be dealt with the authority under the Act is barred by section 15. The
central government has appointed the National Environment Appellate
Authority in 199896. Thus, besides environment tribunal another forum
for settlement of disputes - the National Environment Authority, has also
been constituted.
Preservation of fauna and flora
The dimensions and growth of environmental law in India has

witnessed an accelerated pace. The Constitution included concern for
environmental law in the form of a fundamental duty of both the state and
citizens as discussed earlier. With this backdrop it is worthwhile to
enumerate legislative enactments noted above. Judicial activism has also
been playing a crucial role for strict enforcement of anti-pollution
measures. However, some legal efforts to preserve the forest and wildlife
have not completely been ignored. The 42nd Constitutional (Amendment)
Act, 1976 also inscribed 'forests' under a new item 17-A in the concurrent
list of 7th schedule to the Constitution. The central forestry legislation
comprises the Indian Forest Act, 1927 and the Forest Conservation Act,
1980, whereas wildlife is governed by Wildlife Protection Act, 1972. A
96. Mr. Justice Venkatachaliah (C J (Retd.), Supreme Court) as Chairperson, Mrs.

Nirmala Bach as Vice Chairperson and two retired officers as members were appointed.
For critical evaluation of National Appellate Authority see, comments of Justice M.J.
Rao in M.V. Naidu v. A. P. Pollution Control Board , supra note 45.

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chronicle of the laws relevant to the theme are discussed in

paras.
A comprehensive central legislation was enacted by the Parliament
under article 252 in 1972, called the Wildlife (Protection) Act for providing
special legal protection to wildlife of India, particularly to the endangered
species of fauna. Wildlife (Protection) Act, 1972 provides the statutory
framework for protecting wild animals and plants. It has a provision for
setting up national parks and sanctuaries where our wildlife can receive
fullest protection. For infringement of the provisions of this Act, very
stringent punishments have been provided. The Wildlife (Protection) Act,
1972 has been amended in July 1991. The amendments also envisaged
establishment of a Central Zoo Authority to regulate the management and
functioning of zoos. The Act regulates trade and commerce in wild
animals, animal articles and wildlife trophies.
In State of Bihar v. Murad Ali Khan 97 , the Supreme Court allowed
state government's appeal and restored the orders of the magistrate taking
cognisance of offences under the Wildlife Act. In this case the accusation
against the respondents was that they had shot and killed an elephant in
the Kundrugutu Range Forest and had removed its ivory tusks. Stating the
object of Wildlife Act, the court observed:
The preservation of fauna and flora, some species of which are

getting extinct at an alarming rate, has been a great and urgent
necessity for the survival of humanity and these laws reflect a
grave situation emerging from a long history of callous
insensitiveness to the enormity of the risks to mankind that go
with the deterioration of environment. . . . The largest single factor
in the depletion of the wealth of animal life in nature has been the
civilized man operating directly through excessive commercial
hunting or more disastrously, indirectly through invading or
destroying natural habitats.
The Forest Conservation Act, 1980 was a long felt measure to protect
and conserve forests. The Act seeks to achieve two objectives: (i) it seeks
to restrict the powers of the state government in respect of de-reservation
of forest and use of forest lands for non forest purposes; (ii) to oversee
the implementation of the statute. This small legislation with only five
sections provides that "notwithstanding anything contained in any other
law for the time being in force in a State, no State government or other
authority shall, except with prior approval of the Central government,
make any order directing: (i) de-reservation of a reserved forest; (ii) use
of any forest land for any non forest purpose; (iii) assignment of any
97. AIR 1989 SC 1.

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forest land to any private person or entity not controlled by G

and (iv) clearing of any forest land of naturally grown tr
purpose of using it for reforestation".
The term 'non forest purpose' has often invited judicial atte
Supreme Court has held in a famous Arunanchal Pradesh 98 cas
running of saw mills of any kind including vineer of plywoo
mining of any mineral are non-forest purposes and are, ther
permissible without prior approval of the Central Governmen
The Bio-diversity Bill, 2000" is of recent origin and yet to
by the Parliament. This landmark legislation following the Bi
Convention of the Earth Summit aimed at protecting India's
and ensuring equitable benefit sharing by the users and the o
Bill is intended to provide for conservation of biological
sustainable use of its components and equitable sharing of th
arising out of the use of biological resources and for matters
herewith or incidental thereto100 . The main objectives of the
to regulate access to biological resources; (ii) to conserve and s
use of bio-diversity, (iii) to respect and protect knowled
communities related to bio-diversity, (iv) to secure sharing of
with local people as conservers of biological resources and
knowledge relating to use of biological resources, (v) conser
development of areas important from the standpoint of biologic
by declaring them as biodiversity heritage sites, (vi) prot
rehabilitation of, threatened species, and (vii) involvement of i
of self government in the implementation of the Act. Th
legislative measure is a welcome step; though it has sectora
since it does not deal with every aspect of biodiversity. It doe
relate to legislations that deal with the other aspects of bio-r
Right to information
Lack of information and extremely uncooperative attitude of

government authorities is a stumbling block. Pollution proble
noticed as collusion between officials and polluters. Under the
special environment enactments, the concerned citizens or act
no right to information. A limited provision for dissemi
information is to be found in the Factories Amendment Act and In
Act.
98. T.N. Godavarman Thirumulkpad v. Union of India, AIR 1997 SC

99. Bill No. 93 of 2000 was introduced on 15th May, 2000.
100. The preamble is the same as the objectives spelt out at the Con
Biological Diversity (CBD) signed in 1992 at the Earth Summit.

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Even when the government authorities undertake investig

complaint by a concerned citizen or an activist, the said activ
does not have the right to get the investigation report. T
information is considered a fundamental right in many count
the right to information has been read into fundamental rig
speech and expression. In Bombay Environment Action Gr
Cantonment Board 101 , the Bombay High Court upheld a cit
right to inspect the documents of government agency.
categorically held that one who is asking for information
public interest to have full access to information. In an appeal
Court confirmed the decision of the high court102 .
In M.C. Mehta v. Union of India 103 the Supreme Court hel
state-owned media should broadcast environment programm
state should consider including environment subjects
curriculum. To be aware of environment issues and how g
decisions in environmental projects are affecting lives is a ver
part of the right to information. The mode of dissemination of in
is particularly important, keeping in view the fact that vast
people, who normally reside in vicinity of the dangerous pro
poor and illiterate.
Enforcement of laws
Laws alone cannot serve the purpose except increasing the thickness
of the statute book, if they are not strictly enforced. As far as
implementation of laws are concerned we are still far behind in
achieving our goal. The bane of Indian laws has been the lack of
implementation which is also true in case of environmental laws.
Insufficient implementation of laws has already been commented upon
by courts. Rural Litigation Entitlement Kendra, Dehradun v. State of
U.P . 104 emphasises the social obligation of every citizen and the
government. In Shriram case105 the Supreme Court has imposed several
conditions for restarting chlorine plant. There is a non-delegable duty to
the community to ensure that no harm will result to anyone. In Vellore
Citizen Welfare Forum v. Union of India106 , Mr. Justice Kuldip Singh
pronounced that the principle of sustainable development has to be adopted
as a balancing concept. International law, in particular customary
101. A.S. W.P. No. 2733 of 1986 dated Oct. 7, 1986 (unreported).
102. SLP Civil No. 11 291 of 1986 decided on 13.10.1986 (unreported).
103. AIR 1992 SC 382.
104. AIR 1985 SC 652.
105. Supra note 86.
106. AIR 1988 SC 2187.

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international law, if not contrary to municipal law is dee

incorporated in domestic law. The polluter pays principle is a
and as such the polluter is liable to pay the cost of the individu
as well as the cost of reversing the damage to ecology. In t
precautionary principle an adverse environmental conseque
fasten the responsibility on the defendant to prevent dam
environment. The courts have deemed this principle as part of
municipal law107. Mr. Justice Kuldip Singh, in the Delhi
Pollution case108, directed the State Transport Commissioner
issue notices to various unions of motor vehicles to sugges
means to control air pollution.
IV Conclusion
A panoramic view of environmental laws bring to fore the ancie

Indian heritage which lies embedded in Upnishads , Purans ,
Arthashastr which prescribed it as a moral duty of every human bein
maintain conducive environment in his habitat. Kautilaya's sense
environmental sanitation, health and hygiene for the people was the s
India is a cradle of various religious thoughts. Reverence for nature
its creations are the unifying ethical principle in the religions of India
of these keep nature above the man and may be considered to
precursor of customary international law. Despite such strong tradi
the environmental law in India has not been successful in real sense of
term.
In independent India various legal measures have been taken to

protect and improve the environment. Besides the constitutional provisions,
a survey of Indian laws reveal that there are numerous enactments relating
to environment passed either by the central or the state legislatures. But
this plethora of environmental laws has not been able to check
environmental degradation and eco-system imbalances. In the absence of
specific and comprehensive environmental law the courts of India have
played a pivotal role and the judicial interpretation of the laws has helped
in the creation of environmental jurisprudence which seeks to strike a
balance between environmental protection and development.
Legislative alertness to make appropriate changes on appropriate
occasions are bold and meaningful steps. But the pollution control measures
107. Ibid.
108. W.P . No. 939/96, order dated 18.1 1.1996 (unreported). Justice Kuldip Singh
suo motu initiated proceedings but when he was informed that a petition was already
pending at the initiative of Shri M.C. Mehta, he dropped further proceedings; see also,
supra note 60.

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need be supplemented by effective administrative regul

EPA is a legislation for passing references though it provide
for number of activities through the mechanism of delega
and delegated powers. The Act does not repeal any of the p
India has an extensive framework of environmental laws.
commitment to environmental policy objectives is highl
inclusion of provisions in its Constitution. This represents
legislative commitment rare in international experience. In
decisions of Indian courts have provided recognition of env
rights, which is more extensive than in most countries, for
recognition of the right to environment as an inherent part of
life under the Constitution. Although there are issues that
addressed relating to adequacy of the substantive coverage
the co-ordination among existing laws and regulations, t
issue to be addressed at this time is the strengthening and im
of existing laws.
The concept of sustainable development is one of the ha
between environmental value and developmental needs. Sus
of existing resources is one such example. Even among reso
one area where stringent regulation is necessary for ensurin
land use management. An isolated approach towards sim
cannot be a correct substitute for development. Regulat
under the EPA still remain to be strengthened.
On the other hand, lawmakers lack sufficient awareness of
environmental problems which restrict formulation of comprehensive
legislation on environment. The National Environment Tribunal Act,
1995 is yet to be enforced and the Constitution of Tribunals is awaited but
a comprehensive legislation on environment known as the National
Environment Laws (Amendment) Bill, 1999 is under consideration of the
Ministry of Environment and Forest, Government of India1 10 . It is hoped
that a comprehensive view of the matter would call for taking the
constructive criticism into account for discussion and drafting of this
important legislation.
In view of existing environmental problems and their awareness, a
need for protection assumes significance. The sanctions are to be rigid
109. These administrative actions were taken during the eighties. See, Central
Pollution Control Board Annual Report 1988-89 to 2000-2001; see also, chapter 4,
Eighth Five Year Plan 1992-97 (1992).
110. The ministry invited the Indian Law Institute for the comments on the
proposed legislation. The same were discussed in the ministry in a meeting of
environmental experts from various parts of India including Indian Law Institute. The
comments sent by the Indian Law Institute on the Bill are included in a comparative
statement of comments prepared by the ministry of environment and forest, government
of India.

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and greater responsibilities are to be imposed on authorities to im

laws. Laws in action have to be legislated expeditiously to check im
harm to the community. Encouragement and incentive for prom
better environment both amongst the rural and urban populace w
a better substitute than the penal sanctions. It is also imperative th
should be a genuine public participation in environmental decision
In this direction the citizens can play crucial role in the form of
movements in order to protect the environment. Many illustrat
found in the history of protection of environment in India111.
participation in environmental law making and its implementation
begin from micro level.
111. See detailed account of such movements in Furqan Ahmad, "

Movements in Water Resources Management and Role of Law" Chatrapa
(ed.), Water Law in India 242-46 (1992).

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ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA by Furqan Ahmad

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ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA

Author(s): Furqan Ahmad

Stable URL: https://www.jstor.org/stable/43951782

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NATURE IS the common heritage of mankind. To preserve this heritag

* Associate Research Professor, Indian Law Institute, New Delhi.

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balance1 . Fouling of water was a sin visited with penance of out

The Mahabharata warns us, that while it takes only a few to d

1 . See, Manu Smriti (verse 56 of chapter 3 and verse 56 of chapter 4) as cited by

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level8 particularly the ones which have influenced the devel

II Impact of International environment law

As noted above, an international concern for environmental protection

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Channel 13 case where the International Court of Justice declare

Stockholm Conference 1972

The UN Conference on Human Environment and Development held

13. United Kingdom v. Albania , (1949) ICJ Rép 4.

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The accompanying 'Action Plan' consisted of 109 recom

Basel Convention 1989

In order to check the dumping of hazardous and toxic wastes and

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Earth Summit 1992

The United Nations Conference on Environment and Development

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The Rio Declaration23 , in principle 13 calls upon the states

Ill Perspective of Indian law

India is a party to most of the international conventions on

23. Rio Declaration on Environment & Development 1992 , 31 ILM 874-80

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During the British period, legal control of environmental po

28. S. 278, Indian Penal Code, 1860.

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Environmental law has found special mention in the Indian

In Subhash Kumar v. State of Bihar 38 , the court observed:

Right to live is a fundamental right under Article 21 of the

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removing the pollution of water or air which may be detrime

Maneka Gandhi39 case has added further dimension to the c

Environmental concerns . . . are in our view of equal importa

39. Supra note 36.

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Courts of Allahabad45 , Himanchal Pradesh46 and Kerala4

Entries 7 and 52 of list I deal with power of Parliament in respect to

45. S.K. Garg v. State ofU.P.< AIR 1999 All 41.

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legislative power over the rest of industries under entry 2452 .

When the Court is called Upon to give effect to the Directive

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executive, to comply with the statutory obligation of pr

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described these constitutional imperatives as a pointer to the sta

Specific legislative journey

61. General Public ofSproon Valley v. State of Himachal Pradesh , AIR

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an instrument to combat pollution in the 1980's and wa

69. AIR 1980 SC 1622.

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Tiwari Committee Report 1980 and later developments

The Government of India constituted a high-powered com

71. Report of the Committee for Recommending Legislative Measur

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