International Environmental Law Meaning of environment: Environment means everything around to a living being. It comprises the set of natural, social and cultural values existing in a place and at a particular time, that influence in the life of the human being and in the generations to come. Le., it 1s not only the space in which life develops, but it also includes living beings, objects, water, Soil, air and the relations between them. Environment is a set of physical, chemical, biological and sgeial components that in a short or long term, cause direct indirect adverse effects on living beings and human activities. The environment is a system consisting of natural and artificial elements that are interrelated and which’are modified by human action. It’s the environment that affects the way of life of the society, iticluding natural, social and cultural values that exist in a place and time. Environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property. 5.Different Approaches Towards Environmental Protection Ecocentrism: A philosophy or perspective that places intrinsic value on all living organism and their environment regardless of their, perceived uselulness or importance to human being. Ecocentrism an environmental ethical stance lat argues that ecological ‘concern should over and above human riorities and it must be central to decisions about right and wrong. Example;- A tree or a mountain has ils value because it is part of the environment, Anthropacentrism: A philosophy that regards or assumes human being as the central and final aim of the universe. It places humanity at the center, so that other forms of life will be regarded only as resources to be consumed by hunian being, It is based on the premise of utility or uselulness of any object for human being. Example: A tree has a value because it can be used to benefit humans, Nature must be preserved because pure nature enhances the human spirit. Techno centrism: This approach is based on the philosophy that scientific thinking and scientific research is important in making public policy. Techno-centrists trust in technological advances to solve environmental problems. They trust in the resourcefulness of humans and believe that humans ate able to control nature. They believe that the world has infinite resources to support a growing population and it is achievable through a free-market and reliance on technology. Blocentrism: It was defined by Lanza and Barman « This principle is based on the belief thatthe needs and rights of human beings are not more important than those of other living things, Tt puts: great emphasis on equal consideration for all living things. Biocentrism beliefs and theories have Closely been associated with indigenous traditional practices.Comparison between different approaches of environmental protection Ecocentrism is likely to distrust technology. It stands against large-scale production and views nature as having control over human society rather than the other my round, It believes that the world has very finite natural capital which should be protected rather than exploited. Techno-centrism trusts in technological adyances to solve environmental problems. They believe that the world has infinite resources to support a growing population and it is achievable through a free-market and reliance on technology. Anthropocentrism laces humanity at the center, so that other forms of life will be regarded only as resources to be consumed by human being. It is based on the premise of utility or usefulness of any object for human being. Biocentrism is based on the belief that the needs and oat of human beings are not more important than those of other living things. It puts great emphasis on equal consideration for all living things.Sources of International Environmental Law International environmental law isa body of intemational law concemed with protecting the environment, primarily through bilateral and multilateral intemational agreements. + Customary International Law: Customary international law refers to a set of unwritten laws that have arisen from widespread custom and usage among nations. Examples of environmental international customary law include warning « neighboring nation about a major accident that could affect its environment. + International ‘Treaties/Conventions: The United Nations Conference on the Human Environment (UNCHE), in Stockholm, Sweden, in 1972, The United Nations Convention on the Law of the Sea 1982: Article 192 of UNCLOS states that all nations have a general obligation to protect and preserve the environment, The Rio Declaration on Environment and Development 1992 or The United Nations Conference on Environment and Development 1992, + Judicial Decisions of International Courts: Decisions by intemotional courts or arbitrators, such as the International Court of Justice or the Intemational Tribunal for the Law of the Sea, E.g.: Trall Smelter Arbitration ease of 1938 and 1941, one of the earliest intemational environmental iaw cases, involved a dispute between the United States and Canada over air pollution from « Canadian smelting factory, Trail Smelter Arbitration case & The polluter pays principle: The pollution blew across the American- Canadian border and destroyed crops in the State of Washington. After 15 years, an international arbitration panel established the “polluter pays principle,” a ey foundation of intemational environmental lw. The poluter pays principle holds that if pollition from one nation causes harm in another nation, then the polluter nation mast pay to remedy the damage.Role of International institutions and Non-State Actors in international environmental law UN Conventions: UN Framework Convention on Climate Change (UNFCCC) 1992, Convention on Biological Diversity (Biodiversity Convention) 1992, UN Convention of the Law of the Sea (UNCLOS) 1982. Vienna Convention on the Protection of the Ozone Layer, 1988 (World Meteorological Organization and the United Nations.), Basel Convention on Transboundary Movements of Fazardous Wastes UN Programme/ Commission: UN Environmental Programme (UNEP) 1972 and the Commission on Sustainable Development (CSD) 1992. UN Agencies: International Convention for the Prevention of Pollution from Ships (MARPOL) and Convention for the Control and Management of Ship's Ballast Water and Sediments (Developed by International Maritime Organisation); International Treaty on Plant Genetic Resources for Food and Agriculture, Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Developed by Food and Agricultural Organisation). Non-State Actors (Intergovernmental Organizations, International Noa-Governmental Organizations, Comporate Interest Groups, Transpafional Corporations): World Wildlife Fund, Birdlife Pinion), Bis liversity Action Network, World Resources Institute, Friend of the Earth, ireenpeace ele,Principles of Environmental Law * Precautionary principle * Polluter pays principle * Public Trust Doctrine * Sustainable development + Inter and Intra generational equity * Common but Differentiated ResponsibilityPrecautionary principle Principle 15 of the Rio Declaration 1992; “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”. Onus of Proof: Actor/Developer/Industrialist. Case: Vellore Citizen’s Welfare Forum Vs. Union of India (1996) 5 SCC 647 Case: Andhra Pradesh State Pollution Control Board Vs. Prof. M.V. Nayadu AIR 1999 SC 812Precautionary principle Principle 15 of the Rio Declaration 1992; “where there are threats of serious or imeversible damage, lack of full Secientifie certainty shall not be used as a reason for postponing cost-effective measures to prevent & tal jegradation”, Onus of Proof: Actor/Developer/Industrialist. aye; Vellore Citizen's Welfare Forum Vs. Union of India (1990) § SCC 647; The Precautionary Principle” and “The Polluter Pays" principle are essential features of "Sustainable Development”. he "Precautionary Principle" - in the context of the municipal law - means. (i) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent’ and attack the causes of environmental degradation. (ji) Where there are threats of serious and irreversible Gamage lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation, {iii{The "Onus of proof” is on the actor or the developer/industrial to show that his action is environmentally enign. Case: Andhra Pradesh State Pollution Control Board Vs. Prof, M.V. erat AIR 1999 SC 812: ‘The Status of the Precautionary Principle in Australia: by Charinian Baron (Vol.22} (1998) (Harv. Envit, Law Review p.909 at ppsl0-311), The inadequacies of science ts the real basis of Uhis principle as it involves angijpation of envitonmental harm and taking measures to avoid it or to choose the least environmentally harm.Polluter pays principle Developed by Organisation for Economic Cooperation and Development during 1970s Article-102 of the Treaty on the Functioning of the European Union Principle 16 of the Rio Declaration 1992: “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” Case: Indian Council For Enviro-Legal Action Vs Union Of India AIR 1996 SC 1446 Case; Vellore Citizen’s Welfare Forum Vs. Union of India (1996) 5 SCC 647 »Polluter pays principle Developed by Organisation for Economic Cooperation and Development during 1970s Article-102 of the ‘Treaty on the Functioning of the European L Principle 16 of the Rio Declaration 1992: “National au es should, endeavour to, promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” Case: Rural Litigation Entitlement Kendra Vs. State of U.P. AIR 1985 SC 652 (Dehradun quarrying case): Immediate Steps for reclamation of the areas forming part of the limestone quarries with the help of the already available Eco-Task Force of the Department of Environment, Government of India and the workmen, who are thrown out of employment in consequence of this Order shall, as far as practicable and in the shortest possible me, be provided employment in the alforestation anc soil conservation programme to be taken up in is area, Case: Indian Council For Enviro-Legal Action Vs Union Of India ATR 1996 SC 1446 (Bichhri Village Case): Court requested the National Environmental Engineering Reseacch Institute, [NEERI] to study’ the situation in and around Bichri village and submit theit report "is to the choice and scale of the available remedial altematives”, Case: Vellore Citizen's Welfare Forym Vs, Union of India (1996) 5 SCC 647 (Tamilnadu Tenngries Case): Fle Precautionary Principle’ and "The Polliter Pays" principle are essential features of, "Sustainable Development”. Fine of Rs, 10,000/- each on all the tanneries in the districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai MGR.Public Trust Doctrine Prof. Joseph L.. Sax, Professor of Law, University of Michigan was one of the greatest proponents of the Modern Public Trust Doctrine. According to Prof. Sax, whose article namely "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 Gan. 1970) pp.471-566], puts three types of restrictions on governmental authority: 1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public: 2. the property may not be sold, even for fair cash equivalent; 3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resourcés. Case: M.C, Mehta Vs, Kamal Nath (1997) | SCC 388 Case: M.1. Builders Pvt. Ltd Vs. Radhey Shyam Sahu And Other AIR 1999 SC 2468 Case: National Aududon Society Vs. Superior Court of Alpine Country 33 Cali 419 (Supreme Court of California)Public Trust Doctrine Prof. Joseph L. Sax, Professor of Law, University of Michigan was one of the greatest proponents of the Modern Public Trust Doctrine, According fo Prof Sax, whose article namely "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan, 1970) pp.471-866], puts throe types of restrictions on governmental authority 1. the property subject to the tst must not only be used for a public purpose, but it must be held available for use by the general publi; the property may not be sold, even for fair cash equivalent: 3. the property must be maintained for particular types of use (i) either traditional uses, o€ (ii) some uses particular to that form of resources, Case; M.C, Melita Vs, Kamal Nath (1997) 1 SCC 388 (Span Motel Case); The court summed up the powers of the state are trustee in the following words:- "Thus, the public trust is more than an offinmation of state power to vse public property for public Darposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the alandonmeat of that right is consistent with the purposes of the trust." Case: ML. Builders Pvt. Ltd Vs. Radhey Shyam Sahu And Other AIR 1999 SC 2468: In this case, the Court held hat the Lucknow Mahanagar Palika (Muieipal suihority) by allowing an underground shopping complex to come up below a public park violated the doctrine of Public Trust and ordered the demolition of the structures and restoration of die park, ‘Cave: National Aududon Society Vs, Superior Court of Alpine Country 33 Celi 419 (Supreme Court of California),Sustainable development The United Nations World Commission on Environment and Development released the report Our Common Future in 1987, commonly called the Brundtland Report which gave widely recognized definitions of sustainable development, “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Case: Kinkari Devi Vs. State of Himanchal Pradesh AIR 1993 Cal 215 Case: Vellore Citizen’s Welfare Forum Vs. Union of India (1996) 5 SCC 647 Case: Andhra Pradesh State Pollution Contro! Board Vs. Prof. M.V. Nayadu AIR 1999 SC 812Sustainable development ‘The United Nations World Commission on Environment and Development released the report Our Common Future in 1987, commonly called the Brundtland Report which gave widely recognized definitions of sustainable development. “Sustainable development is development that meets the needs of the present without compromising the ability of future generations 10 meet their own needs.” Vellore Citizen's Welfare Forum Vs. Union of India (1996) 5 SCC 647: The Precautionary Principle" hhe Polluter Pays" principle are essential features of "Sustainable Development", Case: Narmada Bachao Andolan Vs. Union of India & Ors. (2000) 10 SCC 66: ustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, aecording to a "reasonable person's "test. Case: Indian Council for Enviro Legal Action Vs, Union of India: Economic development should not be done at the cost of ecological destruction, the same should not be hampering econonic development. It was stated that ‘economic and ecological developments should be well balanced with effectiveness of both intact. Case: Banwasi Seva Ashram Vs State of UP AIR 1987 SC 374, (1992) 2 SCC 202: Responsibilities were imposed on NTPC to find out alternative plots, render resettlement and subsistence allowance, give free transportation, reserve jobs and provide facilities of roads, water supply, health care and electricity. bCommon but Differentiated Responsibility * This is a principle of international environmental law which establishes the responsibility of all states for addressing global environmental destruction even when they all are not equally responsible for the degradation due to their economic growth/development. First international legal instrument to address climate change and the most comprehensive international attempt to address negative impacts to global environment. This concept is evolved from notion of “common concem” in Convention for the Establishment of an Inter-American Tropical Tuna Commission of 1949 and “common heritage of mankind” in United Nations Convention on the Law of the Sea, 1982 Formalized in international law at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro 1992. In legal terms, CBDR describes the shared obligation of two or more states toward the protection of a particular environmental resource, On the other hand, It also emphasizes upon the need to establish variegated levels at which different states can effectively enter into a collective response, according to both their capacities and their levels of contribution to the problem. &Conventions/Declarations on Sustainable Environment * Stockholm Declaration 1972 + Montreal Protocol (Ozone Treaty) 1987 * Bruntland Commission 1983-87 + Earth Summit 1992: Rio Declaration, Agenda 21 * Kuala Lumpur Conference 1992 ¢ Earth Summit Plus Five 1997 , * Kyoto Conference And Pact on Global Warming (Green House Conference) 1997 ¢ Earth Summit Plus Ten (Johannesburg Declaration) 2002Stockholm Declaration 1972 and Sustainable Development This Declaration was adopted on June 16, 1972 by the United Nations Conference on the Human Environment. It contains 26 principles to recognize the right to a healthy environment under international environmental law. Principles 2, 3, 4, 5, 13 and 14 of this declaration are about the concept of sustainable development for environmental protection. ' Principle 2: Duty to protect natural resources: The natural resources of the earth including the air, "water, land, flora and fauna and especially representative samples of systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate, inciple 3: Duty to preserve renewable resources: The capacity of the earth to produce vital renewable resources must be maintained and, wherever ‘practicable, restored or improved. Principle 4: Wildlife Conservation: Man has, a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperiled by a combination of adyerse factors, Nature conservation, including wildlife, must therefore receive importance in planning for economic development,Continued..... Principle 5: Duty to preserve non-renewable resources: The non- renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind. Principle 13: Rational Management of Resources: In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population. Principle 14: Rational Planning: Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. bRio Declaration (Earth Summit) 1992, Agenda 21 and Sustainable Development Agenda 21 is a non binding action plan and the Product of the Earth Summit (UN Conference on Environment and Development) held in Rio de Janeiro, Brazil, in 1992 with regard to sustainable development. Its an action agenda for the UN, other multilateral organizations, and individual governments around the world that can be executed at local, national, and global levels Aim was to achieve global sustainable development by 2000. Created the Commission on Sustainable Development (CSD) in December 1992 to ensure effective follow-up of UNCED, to monitor and report on implementation of the agreements at the local, national, regional and international levels, Agenda 21, the Rio Declaration on Environment and Development, and the Statement of principles for the Stistainable Management of Forests were adopted by more than 178 Governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, 3 to 14 June 1992, It was agreed that a five year review of Earth Summit progress would be made in 1997 by the United Nations General Assembly meeting in special session. The full implementation of Agenda 21, the Programme for Further Implementation of Agenda 21 and the Commitments to the Rio principles, were strongly reallinned at the World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa from 26 August to 4 September 2002, bEarth Summit Plus Ten (Johannesburg Declaration) 2002 and Sustainable Development The Johannesburg Declaration on Sustainable Development was adopted at the World Summit on Sustainable Development (WSSD), sometimes referred to as Earth Summit 2002, at which the Plan of Implementation of the World Summit on Sustainable Development was also agreed upon, The Johannesburg Declaration builds on earlier declarations made at the United Nations Conference on the Human Environment at Stockholm in 1972, and the Earth Summit in Rio de Janeiro in 1992. This declaration was convened ten years after the UN Conference on Envisonment and Development in Rio. The entire declaration was centered around six important points: From our origins to the future, From Stockholm to Rio de Janeiro to Johannesburg, The challenges we face, Our commitment to sustainable development, Maliilateralism is the future, Making it happea! It was on attempt to move forward with sustainable development efforts by setting implementation strategies, answering questions of accountability, and forming partnerships that go beyond traditional boundaries, The Summit succeeded in achieving some of its goals, such as setting a time-bound sanitation target and recognizing the rights of communities in natural resource management. This declaration had the share of some failures also ice,, the failure to address climate change and to reform global environmental governance,From Sor origins to the future 1. We, the represcntatives. of the peoples of the world, axsomtbled at the World Summil on Sixtainable Development in Johannesburg, South Africa, from 2 to 4 September 2002. reaffien our commitment to ‘stesta irmbaly ewes 2. We cormit ounatves to building. hunmads, equitible and caring gletsal society, cognizant «F the reel for human dignity fir afl J. Atthe beginning ofthis Summit, the children ofthe world spoke to us in a simple yet vlenr veice that (he future helungs vo them, and acenrlingly challenges all eas toy crise tet through our actions they will inher a workd free ignity and imocency ecusioned by poveny, environmental degradition and paitems of unsustainable ikevehopren. Ax part of our response to these children, who represent our collective future, all of us, coming from every comer of the world, informed by different life experiences, are united and moved by a deeply felt [sense thal we urgently need to create a new and brighter world of hope, | §, Accordingly, we assume a collective responsibility to advance and strengthen the interdependent and ly reinforcing pillars of xustainuble development — economic development, social develaprent anid Wironmental protection — al the local, national, regional and global levels. » From this continent, the cradle of bumanity, we declare, through the Plan of Implementation of the7 IRCCe NIN, OAT NUTRI TS ae CROSRTOANS, AE KUNE UTTER aL CATT TESEHNEE Ts ARE crmined eflurt to rexpond positively te the need tn produce a prectical aed viuitshe plan bring whut werty ennai panned haiman dere lopment, From Stakholn te Rie de Janeiro to Johannesburg Thinty yeuns ago, in Stackholm, we agreed en the urgent need 16 respond 1 the problem of Wwisouirvental deterioration 4 Ten years age, at the United Nations Conference on Kuvitotinent and evelopment, held in Rio de Jancie” we agreed that the pratection of the environment and seedal and Jcvonotnic development are fundamental wo Audtainable development, based on the Rio Principles. To: lichieve such development, we adopted the plobal progeacmne enrithed Agenda 21 24und the Ris Declaration on Environment and Developven.” to which we realtirnt our cotumitment: The Rio Conference wan a ‘sienifican milestone thit set anew operite for sostiinable develoynaent, Between Riv and Johannesburg. the world’s nations have met in seventh major confnrenees under the apices of the United Nations, including the Intersationn! Conferene on Pinarcing for Dewelapment® ax Jwellas the Doha Minésterial Conference.“ These conferences defined tor thé world a comiprehinsive: vision fave the fiat: «bf huacmaelty 10, Atthe Johannesburg Summit, we have achieved much in bringing Wpether a rich tapestry of people and Views ina constructive search for a common path towards 4 world that respects and implemarns thse vision of sustainable development, Tho Johannesburg Summit hos also cantinmed that significant progress heen made wwerds achicving 4 phobul consensus and irtmerstip acon wll Hee pussies af vue planet,IL, We rewagnize that powerty ermdicution, ‘changing consumption arn production pattern g and protecting! Huainaging the natural resource base far economic andl social deeglopment are averarching abjectives of land! exsomtaal rexqitements tor sustainable development 12. The deep foul Hime thar divides human socjety between the rich und the poor and the everincreasing ip belwoun the developed and develuping works pone a nagar (hrowt ao global prosperity, security ard .tabitiy: JX. The global environment continues to suitor: Loss of biodiversity continues, fish stocks continue bo he depleted, desertificwtion cluims more and more fertile land, the advetse effects of climite chonge ane Jalrandy evident. natural dikeders ure imore Crequent and more dewastiting, and developing couttries mane Jeulocrable, and air, water and] marine pollution cantinws to rab millions of a decent Wie, (4. Globalization has added whew dimension to these challenges. The mpid integration of markers, Jmobility of copitil und significant increaces in investiient Nows around the world have opened new ballenges and opportunitics forthe purnait of sustainable devclopment, Hut the benefits and costs of (globolization are unevenly disrributed, with developing countries facing special difficulties in mieeting this challenge: 18, Werisk theentrenchment of these gloteal dbyparitics and unless we det im a erummer that ‘fundamentally changes their lives the poor of the world may lowe confidence in heir representatives and the |Memocratic systems to which we remain committed, sccing their representatives as nothing marc than ‘soninding bras aur tinting eyrnbiebs,‘Que commitinent to sustainable development 16, Weanedesermined w ensure that our rich diversity, which is our collective stegugth, willbe used for ‘onstructive partnership for change and for the achievement of thie common goal of estalnable development 17, Recognizing ihe importance of building lunnan solidarity, we Grge the prometion of dislagne and ration umong the world’s civilizations and peoples, Imespeative of race. disabilitis, religton. language, culture or tradition BR Wewaloane the focusofthe lahinnesting Summit on the indivisibitity af human dignivy and ane Lewlved, through devisions on tarptaty. timetables anu! partnctships, a spevaily increase acecas to such basic’ exquirements ax clean water, sanitation, abecpate shelter, energy, health care, food serurity wml the protection of bindiversity. At the same time, we will work together te help one anuther gain access tn [Fincmacial rescues. benefit (ron Une ing OF ares, ensire capavity-boikding, se maockern teckineslogey to bring about development and make sure that |here is technology transfer, human romnace developavent, cation and (raining 40 banish undentevelopmen farever. so ail ast: aig aicig tp try ‘iminleranice to racial, ethos, religivis and other hatreds; Xenaphebia: and cademie, communivable and ¢ diseases, in. particular HIV/AIDS, malaria and mibserculoais,Substantive and Procedural environmental rights Substantive environmental rights: Those environments. rights the existence or the enjoyment of which is directly depended upon the environment itself are called as subslantive environmental rights. E.g. + Right to life, * Right to health, food and an adequate standard of living; + Right affected by environmental degradation, * Rights of indigenous peoples ete. Procedural environmental rights: Procedural environmental rights to be taken in enforcing legal rights, Procedural rights mainly i procedure to achieve the substantive rights. E.g. Access to information, Public participation, and Access to justice. rescribe formal ep ide the mode or theRole of International institutions and Non-State Actors in international environmental law UN Conventions: UN Framework Convention on Climate Change (UNFCCC) 1992, Convention on Biological Diversity (Biodiversity Convention) 1992, UN Convention of the Law of the Sea (UNCLOS) 1982. Vienna Convention on the Protestion of the Ozone Layer, 1988 (World Meteorological Organization and the United Nations.), Basel Convention on Transboundary Movements of Hazardous Wastes UN Programme/ Commission: UN Environmental Programme (UNEP) |972 and the Commission on Sustainable Development (CSD) 1992 UN Agencies: International Convention for the Prevention of Pollution from Ships (MARPOL) and Convention for the Control and Management of Ship's Ballast Water and Sediments (Developed by International Maritime Organisation) International Treaty on Plant Genetic Resources for Food and Agriculture, Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Developed by Food and Agricultural Organisation). Non-State Actors (Intergovernmental Organizations, Intemational Non-Governmental Organizations, Conporae interest Groups, Lransnational Corporations): World Wildlife Fund. Birdie Intemational,’ Biodiversity Action Netivork, World Resources Institute, Friend “of the Earth, eenpeace etc.International Environmental Law Meaning of environment: Environment means everything around to a living being. It comprises the set of natural, social and cultural values existing in a place and at a particular time, that influence in the life of the human being and in the generations to come. 1.¢,, it is not only the space in which life develops, but it also includes living beings, objects, water, Soil, air and the relations between them. Environment is a set of physical, chemical, biological and social componietits that, in a short or long term, cause direct or indirect adverse effects on living beings and human activities. The environment is a system consisting of natural and artificial elements that are interrelated and which’are modified by human action. It's the environment that affects the way of life of the society, iricluding natural, social and cultural values that exist in a place and time. Environment includes water, air and land and the inter-relationship, which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property.Impact of International Environmental Law on environmental law in India * The Water (Prevention and Control of Pollution) Act, 1974 ¢ The Air (Prevention and Control of Pollution) Act, 1981 * The Environment Protection Act, 1986 ¢ Polluter Pays Principle * Precautionary Principle * Sustainable Development * Intergenerational Equity ¢ Intragenerational EquityOverview of Environmental Law in the Colonial Period Indian Police Act, 1861: Noise Pollution, Prescribed certain reasonable limits for the noise. Forests Act, 1868: It provided state monopoly rights over the forests. ‘The customary rights of rural communities to manage forests were curtailed by this Act. Indian Forest Act, 1927: This Act was passed with the objective of conservation, protection and maintenance of forest area. It denied the rights of forest dwellers over the forest produce, The Shore Nuisance (Bombay & Kolaba) Act, 1853 and The Oriental Gas Company Act, 1857; It imposed restrictions on the fouling or contaminating water. ‘The Merchant Shipping Act, 1858: It prevents pollution of sea by oil. Indian Penal Code, 1860: First attempt to control water and atmospheric pollution through criminal sanctions, Indian Easement Act, 1882: Prescriptive right to pollute the water but it was not an absolute water. Fisheries Act, 1897: This Act made the provision of penalty for killing the fishes or contaminating the water to kill fishes.Constitutional Provisions and Environmental Protection Centre State Relations (Article 245-263) Article 248: Residuary Power of the Parliament 42" Amendment to the Constitution inserted following entries in the concurrent list of the 7% Schedule of the constitution: + Entry 17-A: Provision for forests (Earlier it was the subject matter of state list) * Entry 17-B: Protection of wild animals and birds (Subject matter of state list earlier) + Entry 20-A: Population Control and Family Planning Article 14: Right to Equality Atticle 19(1)(a); Freedom of Speech and Expression Article 19(1)(g): Freedom of profession, or to carry on any occupation, trade or business. Article 21: Right to Life and Personal Liberty Article 48-A; Protection and improvement of environment and safeguarding of forests and wild life, Article 51-A(g): Fundamental duty to protect and improve the natural resources, Article 32 and 226: Writ Jurisdiction of the Supreme Court and the High Courts.Judicial Interpretation of Constitutional Rights Kinkari Devi Vs. State of Himanchal Pradesh AIR 1988 HP 4 General Public for Saproon Valley Vs. State of Himanchal Pradesh AIR 1993 HP 52 Rural Litigation Entitlement Kendra Vs, State of U.P. AIR 1985 SC 652 (Dehradun quarrying case) P. A, Jacob Vs. The Superintendent of Police, Kottayam AIR 1993 Ker | Moulana Mufti Md. Noorur Rehman Barkati Vs. State of West Bengal AIR 1999 Cal 15 Abhilash Textiles Vs. Rajkot Municipal Corporation AIR 1988 Guj 57 Burrabazar Fire Works Dealers Vs. The Commissioner Of Police And Ors. AIR 1998 Cal 121 M. C. Mehta Vs. Union of India AIR 1988 SC 1037 (Kanpur Tenneries Case) T. Damodar Rao v. Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171 Subhash Kumar y, State of Bihar [(1991) 1 SCC 598 T.N. Godavarman y, Union of India (2012) 3 SCC 277Quality of Life and Right to Environment Case: Subhash Kumar vs State Of Bihar And Ors AIR 1991 SC 420: Article 32 is designed for the enforcement of Fundamental Rights of a citizen. It provides for an extra-ordinary remedy to safeguard the fundamental rights of a citizen. Right to life 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 right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.Approach of Judiciary towards Directive Principles and Environmental Protection Case jandhua Mukti Morcha y. Union of India, (1984) 3 SCC 16: supreme Court while dealing with inhuman and pitiable conditions of the labourers working in stone quarries held that the right to live with human dignity, enshrined in Article 21, derives its life-breath from the directive principles of the State policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42, Case: T. Damodhar Rao And Ors. vs The Spectal Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171: Protection of the environment is not only the duty of the citizen but it is also the obligation of the State and all other State organs including Courts. In that extent, environmental law has succeeded in unsbackling man's right to life and personal liberty from the cluiches of common law theory of individual ownership. Case: Sachidananda Pandey ys State Of West Bengal & Ors AIR 1987 SC 1109: Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art, 48 A of the Constitution the Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, "and Art, S1A(g) Which proclaims it to be the fundamental duty of every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures.” When the Court is called upon to. give effect to the Directive Principle and the fundameniial duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so itis matter for the policy making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind irrelevancies excluded.Directive Principles and Environmental Protection Application of the principles contained in this Part (Article 37): The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Certain principles of policy to be followed by the State (Article 39-e): The State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abvased and that citizens ate not forced by economic necessity tdienter avocations unsuited to their age or strength. Duty of the State to raise the level of nutrition and the standard of living and to improve public health (Article 47): ‘The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Protection and improvement of environment and safeguarding of forests and wild life (Article 48-A): The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Protection of monuments and places and objects of national importance (Article 49); It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the cease may be, Promotion of international peace and security (Article S1-c): The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.Manoj Mishra v. Union of India (NGT, 2013) Hindustan Times published a report “quite flows the Maily Yannuia”. in 1994 for which Hon'ble Supreme Court orders iu Suo-Moto ‘Writ Petition 725/1994 to convert "Maily to Salubrions and Pristine Yamuna" On 10th October, 2012 “The Hon'ble Supreme Conrt then proceeded to pass certain directions, with the hope that the authorities would take odequate and appropriate steps to attain the object of making Yarmana clean and healthy” Petitioners, approached various concerned Agencies for appropriate actions in Nov. and Dee, 2011 failing which they approached NOT. Failure as part of giving effect to Dicective Principles of state Policy as well as Fundamental dury under Art 48 A and SI A(e) the Constiwion respectively applicants prayed before NT under section 15 of NGT Act 2010 for reconstitution of Environment and cology of the river bed and making Yamuna Pollution Free, ‘The primary subject matter of the Original Application of this case was the recent encroachment end dumping of building debris and other solid waste in the river bed/flood plain and even into the natural water body of River Yamuna. The applicant had prayed in Original Application that all the debris and other solid waste dumped in the river bed should be directed to be removed and the natural water body be restored to its original form. The grievance of the applicants in this case was regarding the ongoing encroachments and the conversion of Kushak Drain into parking and road-cum-pirking space and conversion of land use of the Shahdara Link Drain from ‘tility’ “commercial” and proposed construction of commercial undertaking in the form and nature of “Delhi Hast" - a commercial shopping complex, over and above the drain, ‘The applicants prayed that the Tribunal shonld direct stopping of consinuction activities on both these drains, that the drains shoald not be covered, that Expert Commitises should be appoiated to suggest methods for maintenance of storm water drains a3 ecologically secure green ways and the respondents or any other person be prohibited from demolishing or destroying the natural and/or artificial rains in Delhi bContinued... Vide order dated 31 January 2013, the Tuibunal directed State of UP, the DDA, Government of NCT of Delhi and the East Delhi Municipal Corporation to start the removal of debris from the river banks and the water bodies mentioned in the petition near River Yamuna, All suthorties were also directed to identify the sites for dumping of debris and waste and in the ‘meanwhile all construction debris was directed to be transported to the site at Gazipur. Vide order dated 1 February 2013, a Special Committee was constituted, The Tribunal had also appointed Local ‘Commissioners to visit the sites in the entire stretch of Yamuna that flows in Delhi and to report with regard to removal of construction debris and other waste, ‘The reports fiom the Local Commissioners had shown that the directions issued by the Tribunal were not being carried out, ‘The report of the High-Powered Committee was provided to all the authorities and they were directed to remove the debris thrown by the respective authorities and take them to the earmarked sites, In the order dated 17 July, 2013, the Leamed Local Commissioners had filed their respective reports, They brought to the notice of the Tribunal that dumping continued on the river baak particularly in Geeta Coloay. In the order dated 22 July, 2013, the Tribunal, while invoking the ‘Polluter Pays? Principle, directed that any person who was found cumping debris on river bank in Geeta Colony site or any other site, shall be liable to pay compensation of Rs. Five Lakhis, beMd. Salim v. State of Uttarakhand 2017 SCC Online Utt. 367 In this case, the court noticed that degaite the decision of this Court (Uttarakhand High Court) dated 05.12.2016, the States of Uttar Pradesh and Uttarakhand have not cooperated with the Central Government to constitute a Ganga Management Board. The Court, in exercise of its parens patrige jurisdiction, declared the Rivers, and all their tributaries, streams, every natural water Dewi with continuous or intermittent flow, as juristic/legal persons/living entities, having the status of a legal person with all corresponding rights, duties and liabilities of @ living person read with Articles 48-A and 51- A(g) of the Constitution. The Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand were declared as persons in loco parentis i.e. the human face bound to protect, conserve, preserve, uphold the status and promote the health and well being of Ganga and Yamuna. The Court made it clear that, “Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea” and the constitution of Ganga Managerient Board has become all the more necessary for the purpose of iigation, rural and urban water supply, hydro power generation, navigation and industries as well.Lalit Miglani vs State Of Uttarakhand And Others 2017 Utt. The court by invoking parens patriae jurisdiction, declared the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridicial person/ moral person/arlificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.Fundamental Duty and Environmental Protection Article 51-A (g), says that “It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures,”Union of India (2012) 3 SCC 277 cd in this case that the subjects ‘forest’ and ‘protection of animals and birds' are in the of the Constitution and it is the fundamental duty of every citizen of India under Article 51A(g) of the Constitution to protect and improve the natural environment including forests, lakes, rivers and wildlife. T.N. Godavarman The court vie Asiatic Wild Buffalo is reported to be the most impressive and magnificent animal in the world, It is found in the Western and Eastem Ghats of the country, This petition was presented for direction to the Union of India and the State of Chhattisgarh to prepare a rescue plan to save Wild Buffalo, an endangered specie from extinction and to make available necessary funds and resources required for the said purpose and also for a direction to take immediate steps to ensure that interbreeding between the wild and domestic buffalo does not take place and the genetic purity of the wild species is maintained, In this case the court directed to the State of Chhattisgarh to give effect to the Centrally Sponsored Scheme - “the Integrated Development of Wildlife Habitats", so as to save wild buffalo from extinction. The State also would take immediate steps to ensure that interbreeding between wild and domestic buffilos does not take place and genetic purity of the wild species is maintained. The State is also directed to take immediate sieps to undertake intensive research and monitor the wild buffalo population in Udanti Wildlife Sanctuary and other areas, where the wild buffalo may still be found, including preparing them their genetic profile for future reference. The State is also directed to submit Annual Plan of Operations to the Central Government detailing the proposed course of action, if not already done, as per the "Integrated Development of Wildlife Habitats" scheme, within a period of three months from today. Alll effective steps should be taken by the State to protect the Asian wild buffalo which is declared as @ State animal by the State of Chattisgarh, &T.N. Godavarman continued Another question in this case before the apex court was about the protection of sandalwood i.e., whether sandalwood as an endangered plant species, be declared as a ‘specitied plant’ in Schedule V1 of the Wildlife Protection Act (WPA), 1972 or not? The court observed that time had come to think of legislation similar (o the Endangered Species Act enacted in the United States that protects both, endangered and threatened species ‘The court has left the decision to include sandalwood in Schedule VI of the WPA to the Na (NBWL) asking it to do so in six months. onal Board for Wildlife Conservationists have welcomed the order but demanded more stringent steps to curb the illegal felling of sandalwood trees. ‘The MoEF had stated, “the ministry has 'no objection’ in allowing legal private entrepreneur to set up sandalwood oil Units in non-sandalwood producing states provided that only legally sourced sandalwood is used and the regulatory enforcement mechanisms set up by the state are well in place.” MoEF also suggested about the imported sandalwood as a substitute for Indian sandalwood which was objected by the conservationists as, “Imported sandalwood can never be viable. Traders will use smuggled sandalwood from India as departments have no mechanism to check illicit trade,” ‘The SC has said that sandalwood was included in the Red List of International Union for Conservation and Nature (IUCN) as ‘vulnerable’ and hence serious attention by the Centre was needed considering the fact that all the sandalwood growing states had stated that it faced extinction, >Right to Environment as a Fundamental Right ‘ation and Entitlement Kendra vs. State, AIR 1988 SC 2187 (Popularly known as Dehradun Quarrying Case): The first case in which right to live in a healthy environment as part of Article 21 of the Constitution was recognized by the Court. M.C. Mehta vs Union Of India And Ors. AIR 1992 SC 382: Directions to remove environmental illiteracy or to create environmental awareness were given- * Cinema halls/video parlors to, exhibit not less than two slides on environment prepared by the ministry of environment. + Doordarshan and AIR to allot 5-7 minutes daily for interesting programmes on environment. + Environment be made a Sommulsary, subject ina pede way in schools and colleges and universities shall prescribe a course for the same. Rural LiPublic Trust Doctrine in India Prof. Joseph L. Sax, Professor of Law, University of Michigan was one of the greatest proponents of the Modern Public Trust Doctrine. According to Prof. Sax, whose article namely "The Publie Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp-471-566], puts three types of restrictions on governmental authority: 1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equivalent; 3. the property must be maintained for particular types of uses (i) either traditional uses, or (ii) some uses particular to that form of resources.M.C. Mehta vs Kamal Nath & Ors. (1996) 1 SCC 38 The public trust doctrine is a part of the law of the land. The prior approval sranted by the Goverument of India, Ministry of Environment and Forest i favor of the Motel are qtshed. The lease granted to the Motel is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions. ‘The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution catised by various constructions made by the Motel in the river bed and the banks of the river Beas has to be removed and feversed. Services of NEERI can be utilized for reversing the damage caused by the Motel to the environment and ecology of the area, NEERI may take into consideration the report by the Board in this, respect. ‘The Motel through its management shall show cause why pollution fine in addition be not imposed on the Motel The. Motel shall construct a boundary wall at a distance of not more than, 4 meters from the cluster of rooms ‘main building of the Motel) towards the river basin, The boundary wall shall be on the area o the Motel, The jotel shall not encroach’cover‘utilise any part of the river basin. The boundary. wall shall separate the Motel building trom the river basin, The river bank and the river basin shall be left open for the public use. The Motel shall not discharge untreated effluent into the river, We direct the Himachal Pradesh Pollution Control Board (0 inspect the pollution control devices/treatment plants. set up by the Motel. If the effluent waste discharged by the Moté is not conforming 10 the prescribed standards, detion in accordance With law be laken against the motel. The Himachal Pradech Pollution Control Board shall not permit the discharge of untreated effluent into river Beas, The Board shall spect all the hotels institutions/nctaries in Kulis-Mandlf area and in case any of them are discliarging untreated effluent waste into the river, the Board shall take action in accordance withOther Important Judgments of Supreme Court M. I. Builders y. Radhey Shyam Sahu, ATR 1999 SC 2468 The Lucknow Municipal Corporation granted permission to a private builder to construct an underground shopping complex. which was against the Master Plaa of Lucknow city. In this case. the Court held that the Lucknow Mahanagar Palika (Municipal authority} by allowing an underground shopping complex to come up below « publie park violated the doctrine of Public Trust and ordered the demolition of the structures and restoration ofthe park, original position within a period of three months from the date of the ‘Writ of mandamus Was issued to the Mahapalika to restore back the park in juard and protection to the public, wsers of the pak. Judgment and till that was done, fo take adequate safety measures and to provide necessary safe TAN, Godavarman Thirumuikpad y. Union of india ALR 2005 $C 4256 Dealing with the issue of some water bodies mainly relating to tanks, the court observed that the tank is a communal property and the State authorities ate trustees 19 hold aad manage such properties for the benefits of the community aud they cannot be allowed Yo commit any act oF omission which will inftinge the right of the Comuaunity and alieuate the property to aay other person or body. ‘Mrs. Susetha y, State of Tamil Nadu & Ors AIR 2006 SC 2893 tank was lying In disuse and was abandon lnted with w temple tank tn « village. The sal cting a shopping complex for ‘of Tamil Nadu also istued a Ge The village is situated near a sea having five water taiks in oF around thetein. 1t i, thereZor, difficult to accept that there had been ace waver shortage in the village, as was submitted by Ms. Malhotra. The tank in question is nota natural tank, There is no material on records to show as to since when it has fallen in disuse, indisputably the tank in question isin ¢ dilapidated condition for along time and has been used as & dumping yard and sewoge collection pond, In our opinion, thus, it is not a case where we should direc its cesureetion, The High Court in its judameat has taken into consideration all relevant ftctors, It was not pointed out that essential features or otver relevaat principles of law were not taken into ‘consideration by the High Contin passing the impugned judgment, "Approach of High Court and Public Trust Doctrine Shailesh R. Shah y. State of Gujarat (2002) 43 (3) GLR 2295 Issue was about the protection, preservation and improvement of the water- bodies in the State and safeguarding them against encroachments. The court while explaining the principle of trusteeship of state explained the duty of the state as, “the state holds a positive duty towards all resources such as lake, pond, natural gates etc. as a trustee to preserve and safeguard their degradation and prevent them from extinction.Civil Remedies i.e. Tortious remedies and Class Action Law of torts as a part of common law provides relief for environmental pollution under various headings like, (i)injunction (ii) Nuisance (iii) Negligence (iv) Strict Liabilities (v) Absolute Liability. A plaintiff in a tort action may sue for damages or an injunction or both. Damages are of two kinds: 1, Substantial Damages b 2. Exemplary Damages Substantial damages mean a fair and reasonable amount of compensation be awarded to maintain status quo as if no wrong has been committed. Exemplary damages are in addition to substantial damages. Its basic purpose is to create a deterrent effect i.e., higher price to be paid for causing harm to the environment.Injunction Injunction is a judicial process where a person who has infringed or is about to infringe the rights of another is restricted from pursuing such acts. It is granted at the discretion of the courts and is of two kinds: 1. Temporary Injunction: Sections 94 & 95 read with Order-39 of the C.P.C. 1908 2. Permanent Injunction: Sections 37 to 42 of the Specific Relief Act, 1963. Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 Dr, Ram Baj Singh Vs, Babulal AIR 1982 All 285Temporary Injunction “The temporary injunctions wre temporary orders because they remtin valid unt the fsther order ofthe cout or wt the final decree ofthe case. The temporary Injunction is granted by the Couit against any party when the said party is about to the make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the property or creates a thirty party interest in the preperty. Temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing condition and which may be ranted on an interlocutory application at any stay of the suit Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary injunction under the following cireumstances ‘When there is a reasonable apprehension and danger of alienation or disposal of property by any party to the suit or by wrongful waste of the property; or + When there is an apprehension of alienation or disposal of the property to defraud creditors; or + Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff in relation to the disputed proper + When the Defendant is about to commit a breach of contract; of + Any other injury is likely to be caused or likely to be repeated: or + Whore the Court is of the opinion that for protection of interest of any party to the suit or in the interest of justice injunction or stay is required and necessary. ‘Manohar Lal Chopra Vs. Rat Bahadur Rao Raja Seth Hiralal AIR 1962 SC $27: Supreme Court held, even if case not covered on grounds of 0-39, Temporary Injunction can be granted in exercise of Inherent Powers Under Section 151 of CPC.Permanent Injunction Perpetual/Permanent Injunctions is granted by the courts to restrain the party forever from doing the act complained of. This perpetual or permanent injunction can only be granted after final hearing and decree has been passed by the court and this is completely decided on the merits of the case, Permanent or Perpetual Injunctions are governed by section 38 to 42 of Specific Reliel Act, 1963, It determines the rights and liabilities of the parties ly. Dr, Ram Baj Singh Vs. Babulal AIR 1982 All 285: In this case, the defendant had created a brick grinding machine adjoining to the premises of the plaintiff, who was a medical practitioner. The brick pending machine pepetaied lots of dust, which in turn polluted the atm . The dust that was generated due to the brick grinding machine entered the consulting chamber of the plaintiff and caused phys inconvenience to the plaintiff and his patients and a red coating on the clothes which Was clearly visible. Tt was held that special damages were proved regarding the plaintiff and a permanent injanetion was issued against the defendant to restrain him from tunning his brick grinding machine,Nuisance ‘Nuisance under modern environmental law is connected with the common-law TORT of nuisance. Nuisance is an unreasonable interference with the rights of the public, enjoyment of property, Anything that hurts or annoys any person is a case of nuisance. It can be public or private. A public nuisanee interferes with a right or interest common to the general public, such as the interest of the general public in clean and healthy drinking water. It is both a tort as well as a crime. Chapter XIV: Of Offences Affecting the Public Health, Safety, Convenience, Decency and Morals. Section 268:- Public nuisance, Section 290:- Punishment for public nuisance. Section 133-134 of Criminal Procédure Code, 1973. Ram Lal ys Mustafabad Oil And Cotton Ginning(1968): It was held that when the noise level crosses a certain threshold value it should be considered as a public nuisance. It falls under the category of noise pollution, It is a public nuisance as it causes discomfort to many at once. A private nuisance interferes with a right or interest of a private individual, such as a homeowner's right to the quiet enjoyment of the land. Dr. Ram Baj Singh Vs. Babulal AIR 1982 All 285 Ratlam Municipality Vs. Vardhichand AIR 1980 SC 1622Municipal Council Ratlam Vs. Shri Vardhichand AIR 1980 SC 1622 The residents (respondents) of a residential colony of the Ratlam Municipal Council (petitioner) filed a complain under Section. 133. Criminal Procedure Code to the Sub-Divisional Magistrate. towards the laifure to perform the statulory obligation by the petitioners like provision of sanitary facilities on the roads, public conveniences for shim dwellers who Were using the road for that purpose, and prevention of the discharge ftom the nearby Alcohol Plant into the public street, mentioned tinder section-!23 of M. P. Municipalities Act, 1961. The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality on their own choice, fully aware of the insanitary conditions and therefore they could not complain. It also pleaded financial difliculties in the construction of drains and provision of amenitis The Magistrate found the facts of the respondents as correct, and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under Section-188 LP.C. The order of the Magistrate was found unjustified by the Sessions Court, but upheld by the High Court. The matter reached through Special Leave Petition before the supreme court on the question whether a Court can by affirmative action compel a statutory body to camry out its duty to the community by constructing sanitation facilities at great cost and‘on a time-bound basis.Continued... Wherever there isa public musance, the presence of's. 183 Criminal Procedure Code must be felt and any contrary opinion is contary to the law: ‘The public power of the Magistrate under the Code is « public duty to the members of the public who are victims of the nuisance and so be shall exercise, itwhea the jurisdictional facts are present The Magistrate's responsibility under s. 133 CEAC. is © order removal of such nuisance within atime Wo be fed in the order, This is a public duty wer to be exercised on behalf of the public and yucenant t9 a public proceeding. Failure to comply with the direction will be i contemplated by 5, ISS TPC, ‘The Municipal Commissioner or otver executive authority hound by the order unser s. 13% Criminal Procedure Code shall obey the direction because disobedience, if caues obstruction oF annoyance of injury to any perens lawfully pursuing their employsnent, shall be punished with simple ‘imprisonment or fine as presenbed in the seston, The offence is aggravated if the disobedience tends ¥o cause danger to huauan Reali or saety, Public nuisance, because of poll somponecut of the rule of lav ate being discharged by big factories to the detiiment of the poorer sections, i¢ a challenge to the social justice The imperative tone of s. 133 Criminal Procedure Code read with the punitive temper of s.188 IPC: make the prohibitory acta mandatory du: The Criminal Procedure Code operates agnnet sianutory bodies aad others reganiless of the cash in their coffers, even as human rights under Part 1 of the Consttition have to be respected by the State regardless of budgetary provision, Although the CrP-C. and LPC. are of ancieat vintage the new social justice orientation imparted (0 them by the Constittion of lndia makes them a remedial weapon of versatile use, Social Justice is dve to the people and, therefor, the people must be able fo tigger off the jurisdiction vested for thei benefit in any public functionary ike a Megistate under s. 43 Criminal Procedure Cove. la the exereise of such power, the judiciary must be informed by the bronder principle of access to juaice necessitated by the coudltions of developing countries and obligated by Art. 38 of the Constitution. le Cou ened with he provi ofthe owe Codes ad justi by th obligation ut 123 of he Act talent ino pve dees at has done in dhe present case. Section 123 Criminal Procedure Code authorises the prescription of time-limit for caning oat the order. The same provision spells ct the power to give spevitic directives, bGovind Singh v. Shanti Sarup, [1979] 2 SCC 267 h ing on the occupation of a baker in the premises let out to him by the Mills had_constructéd an_oven and a chimney, which constituted a nuisance under Section 133 of the Criminal Procedure Code, the trial magistrate after hearing the partics and on local inspection confirmed his earlier conditional order directing the appellant to demolish the oven and the chimney. The conditional order, was confirmed by the magistrate subsequently and the appellant was directed to cease carrying on the trade of a baker at the particular site and not fo lit the oven again. The Additional Sessions Judge recommended reversal of the said order and made a reference to the High Court. The High Court, upheld the trial court's order. Held: |. In a matter of the health, safety and convenience of the public at, large, the safer course would be to accept the view of the learned magistrate, who saw for himself the hazard resulting from the working of the bakery. The magistrate however, went beyond the scope of the conditional order by preventing the appellant from using the oven is certainly within the terms of the conditional order to lesist from carrying on the trade of a baker at the site. In this case, the appellant was caTrespass and Negligence ‘Trespass Trespass is very closely related to nuisance and is occasionally invoked in environmental matters. It requires an intentional invasion of the plaintiff's interest in the possession of the property. must be an intentional unprivileged physical entry by a person on object or land -d by another to constitute tresspi Negligence Negligence in environmental matters is generally invoked in cases of unavailability of remedy under other torts like nuisance, trespass etc. It is based on the principle of fault of other party which sometimes becomes difficult to prove in some cases. Essential Elements: 1. Duty to take care. 2. Breach of duty by the opposite/other party. 3. breach of duty must have caused some loss or injury to the other party. Fumes released from the pesticides leaked to a nearby property through ventilators that, resulted in the death of three children and foetus in a pregnant woman, It was held by the court that it was a clear-cut case of negligence (Naresh Dutt Tyagi v. State of Uttar Pradesh 1993 SC).Strict and Absolute Liabilities Strict Liabilities: The principle of, strict liability evolved in the case of Rylands Vs. Fletcher CSR). his principle states that any person who keeps hazardous substances on his premises will be held responsible if such substances escape the premises and causes any damage. Exception to the Rule of Strict Liability: Plaintiff's Fault, Act of God, Act of the Third Party, Consent of the Pla: , Natural use of the land, Statutory Authority. Absolute Liability: The rule of absolute liability, in simple words, can be defined as the rule’of strict liability while relaxing all the exceptions. In India, wie tule of absolute liability evolved in the case of MC Mehta v Union of india, Cases: 1. M.C, Mehta y. Union of India, (Oleum Gas leakage Case) 1987 SCR (1) 819, 2. Union Carbide Corporation v. Union of India (1989) 1 SCC Sites Vellore Citizen's Welfare Forum Vs. Union of India AIR 1996 SCCases of Absolute liability M.C. Mehta v. Union of India, (Oleum Gas leakage Case) 1987 SCR (1) 819: In this case, leak of Oleum gas from a fertiliser plant of Shriram Food and Fertilisers Ltd. complex at Delhi, causing damages to several people. The court found strict liability principle as inadequate and gave the concept of Absolute liability while relaxing all the defences or exemptions of strict liability. The court wanted corporations to be made fully liable for future undeserved suffering of innocent citizens and held that a hazardous enterprise has an absolute non-delegable duty to the community, Union Carbide Corporation v. Union of India (1989) 1 SCC 674: This case is also known as the infamous Bhopal gas leak case. The Apex Court while deciding appeal in this case applied the doctrine of absolute liability and granted a compensation order of 470 million dollars. Vellore Citizen’s Welfare Forum Vs. Union of India ATR 1996 SC 2715: In this case, explaining the meaning and scope of the polluter pays principle the Court observed “The Polluter Pays principle, as interpreted by this Court, ‘means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Charan Lal Sahu Vs. Union Of India And Ors. ATR 1990 SC 1480: Following the Bhopal Gas Leak tragedy, the Government of India, acting as parens patriae, passed the Bhopal Gas Disaster (Processing of Claims) Act 1985, to take ‘over and pursue the claims of the victims, as they were unable in their circumstances to pursue their claims fully and properly. The validity of the Act was challenged in the Supreme Court where it was held as valid and that the State had rightly taken over the exclusive right to represent and act on behalf of every person entitled to make a claim, as a majority of the victims were poor and illiterate, Consequently, the exclusion of the victims from filing their own cases ‘was held to be proper. The Court also held that the Act only deals with civil liability and as such does not curtail or affect rights in respect of criminal liability. .Constitutional Remedies for Environmental Protection Right fo a wholesome environment has been recognised as an implied fundamental right, the writ petitions are often resorted to in environment eases. A writ petition can be filed to the Supreme Court under Asticle 32 and the High Court under Ast.226, in the case of a violation of a fundamental right, Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental matters, Writ of Mandamus to command action by a public authority when an authority is vested with certain power and that authority wrongfully refuses to exercise it. Eg. It lies against a municipality that fails to construct sewers and drains, clean streot 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 certiorasi and prohibition are issued when an authority acts in excess of jurisdiction, acts in violation of the nules of natural justice, acts under a law which is unconstitutional, commits an error apparent on the face of the record, ete For instance, a writ of certiorari will lie against a municipal authority that consider a builder's applications and permits construction contrary to development riles. It also lies against water polhition control board that wrongly permits an industry to discharge effluents beyond prescribe levels. A writ of prohibition will lie ageinst a municipal authority that permits any construction contrary to development rules or acts in excess of jwisdiction or in violation of rules of natural justice for instance wrongly sanctioning an office building in an area reserved for garden, .PIL and Environmental Protection Public Interest Litigation (PIL) is an important tool/procedure through which the Indian Environmental Jurisprudence has attained a different stature. PILs act as a mechanism for the protection of public interest in India where citizen suits and class action suits are not available. The seeds of the concept of PIL were initially sown in India by Krishna Iyer J. in 1976 in Mumbai Kamagar Sabha Vs. Abdulbhai Faizullabhai & Ors AIR 1976 SC 1455, and further in Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 344 as, “Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction.” PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party ‘or another third party. In PIL, the right to file suit is given to a member of the public by the court. It can be filed by any public spirited individual, institution or non-governmental organisations. PILs may be accepted under article 32 in the Supreme Court and 226 in the High Court. It is in consonance with the objects enshrined in Article 39A of our Constitution to protect and deliver prompt social justice with the help of law.Judicial Decisions through PIL Tarun Bharat Sangh, Alwar Vs. Union of India, (Sariska Bio- reserve) AIR 1992 SC $14: In this case, a distinguished NGO had filed a PIL in the Supreme Court in the year 1991, regarding large scale mining illegally sanctioned by the State Government within the protected area that was steadily destroying the Tiger habitat and pushing them towards virtual extinction. The Supreme Court directed the constitution of a Committee headed by a retired Supreme Court Judge, (Justice MLL. Jain) to prepare a of the mines within the protected area and to ensure the enforcement of the notifications and the orders of the Court. It prohibited all mining activities in Sariska National Park and the area notified as a Tiger Reserve. Vellore Citizens' Welfare Forum VS. Union of India AIR 1996 SC 2715: In this case the Supreme Court allowed standing to a public spirited social organization for protecting the health of residents of vellore. The tanneries situated around river Palar in Vellore Tamil Nadu were discharging toxic chemicals and other effluents in the river, thereby posing a threat to the health of the res business. jents. The Court asked the tanneries to close theirJudicial Decisions through PIL continued Law Society of India y, Fertilizers & Chemicals Travancore Ltd. AIR 1994 Ker 308: A PLL was instituted challenging the operation of a 10,000 tonne Ammonia storage tank by the respondents as being dangerous. It was contended that the Tank regularly causes air pollution and is thus causing serious damage to the environment. If a leak was to develop in the plant, it could exterminate all living things in the Cochin, Finally an order was passed saying this storage violated Article 21 and 3 months time were given to empty it Church of God (Full Gospel) Vs. State of Tamil Nadu: In this case the Supreme Court came down heavily on the practice of beating drams and use of loud speaker in places of worship. It was held that no religion prescribed this practice and observed that “In our view in the civilized society in the name of religious activi which disturb old and infirm persons, students or children having their sleeps in the early hours or during day time or other perform earning other activity cannot be permitted, It should not be forgotten that babies in the neighborhoods are also entitled to enjoy their natural right of sleeping in peaceful atmosphere. Aged, sick people afflicted by psychic disturbances as well as children up to the age of six years are considered to be sensitive to noise. Their rights are also required to be honoured.” In Re, Noise Pollution, the Supreme Court was dealing with the issue of noise pollution. It was of the opinion that there is need for creating general awareness towards the hazardous effects of noise pollution, Particularly, in ‘our country the people generally lack cousciousness of the ill effects which noise pollution creates and how the society including they themselves stand to benefit by preventing generation and emission of noise" pollution.Historical Background: Role of the Law Commission and the Supreme Court In 1972, India became a party to United Nations Conference on Human Environment which required it to take suitable steps towards safety and enhancement of human environment. During 1980s, in M. C. Mehta Vs Union of India 1986 (2) SCC 176, Union Carbide Corporation v, Union of India (1989) 1 SCC 674 ofc, the Supreme Court emphasized establishment of specialized courts in both Bhopal Gas Tragedy Case and Oleum Gas Leak Case Court opined that Judges lacked specialized skills, knowledge and expertize to dispose of environmental issues and therefore specialized courts with experts Were required for speedy disposal of cases,Concept originated from Supreme Courts Judgment in Oleum Gas Leak case, 1986 and other cases In 1992, India participated in United Nations Conference on Environment and Development held at Rio de Janerio which imposed a duty to provide a mechanism for effective access, redressal and remedy through judicial and administrative proceedings, advancing national laws and provisions for liability of defaulters. In compliance with the Intemational mandate, National Environmental Tribunal Act, 1995 making provision for a judicial forum to hear appeals against order of grant of environmental clearances under the B(P) Act, 1986 was enacted. However, failure in implementation of the said Act, lead to enactment of National Environment Appellate Authority Act, 1997, In 2003, the 186th Law Commission Report criticized the Tribunal constituted under 1997 Act and again emphasized on establishing environmental courts in India, After the said recommendation of the Law Commission, Parliament came up with a new set of Bill i, National Greea Tribunal Bill which was eflectively passed and implemented as National Green Tribunal Act, 2010.Recommendations of Law Commission of India-186" Report 2003 + Need to constitute environmental courts due to multidisciplinary issues relating to protection of environment *To have Members with judicial or legal experience assisted by technical experts + Environmental Courts in each State or group of States ¢ Environment Courts to have original jurisdiction in all civil cases where a substantial question relating to environment is involved and + Appellate jurisdiction under various other statutesScheme of the National Green Tribunal (NGT) Act, 2010 This Act consists of 3 Schedules 38 Sections 5 Chapters. Preamble of the Act : To provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property. The National Green Tribunal was established as per the provisions of this Act on 2nd June, 2010.Establishment of the Tribunal (Chapter 1) Establishment (Section 3): The Central Government shall, by notification, establish a Tribunal to be known as National Green Tribunal to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act. Structure of National Green Tribunal: Principal Bench-New Delhi, Central Zone-Bhopal, Eastern Zone-Kolkata, Southern Zone-Chennai, Western Zone-Pune. Composition (Section 5): A full time Chairperson, Not less than 10 but subject to maximum of 20 full time Judicial Members as Central Government may specify, Not less than 10 but subject to maximum of 20 full time Expert members as the Central Government may specify.Original Jurisdiction of the Tribunal The Tribunal shall have original jurisdiction on all civil cases where: * a substantial question relating to environment is involved and * such question arises out of the implementation of the enactments specified in Schedule I appended to the NGT Act Schedule J The Water (P and C P) Act, 1974 The Water (P and C P) Cess Act, 1977 The Forest (Conservation) Act, 1980 The Air (P and C P) Act,1981 The Environment (Protection) Act, 1986 The Public Liability Insurance Act, 1991 7. The Biological Diversity Act, 2002. The Tribunal shall settle disputes, provide relief compensation and may order restitution of damaged environment. ae beeAppellate Jurisdiction of the Tribunal Appeal may be preferred before NGT against * Order of Appellate Authority u/s 28 of Water Act,1974 + Order of State Govt. u/s 29 of Water Act,1974 + Directions by the SPCBs u/s 33A of Water Act,1974 + Decision of Appellate Authority u/s 13 of Water Cess Act,1977 * Order of State Govt. u/s 2 of Forest (Conservation) Act, 1980 + Order of Appellate Authority u/s 31 of Air Act,1981 * Directions u/s 5 of Environment (P) Act, 1986 * Grant or Refusal of Environmental Clearance Under Environment (P) Act, 1986 * Order or determination of benefit sharing, made by National Biodiversity Authority /State Biodiversity Board, under the Biological Diversity Act, 2002. &Limitation of filing application and the heads for claiming relief and compensation Applicaton for relief and compensation or restitution to be made within five years from the date on which the cause for such compensation or relief first arose ‘Compensation or relief payable under heads specified in Schedule IL Schedule II: Heads of Compensation/Relief Death, permanent or temporary disability or injury Loss of wages and medical expenses Damage to private or other property Expenses incurred by the Government / Local Authorities in providing relief and rehabilitation to the affected persons Compensation for environmental degradation and restoration of the quality of environment Claim on account of damage or destruction of flora, fauna, crops, vegetables, trees, orchards, etc. Loss of business or employment or both Any other claim arising out of any activity of handling of hazardous substance