Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

c) AN OVERVIEW OF THE INDIAN CONSTITUTION

The Constitution of India is the supreme law of the land in India. The text exhaustively covers

the working of the governmental machinery operating through the length and breadth of India.

The Constitution puts in writing the fundamental political principles, defining the structure of

governance, laying down the procedures, powers and duties of the government and its officials.

It also gives the citizen of the country, fundamental rights, directive principles and fundamental

duties. The Constitution of India is the longest written document in the world containing

395 articles in 22 parts, 12 schedules and 115 amendments. According to the Constitution, India

is a sovereign, socialist, secular, democratic republic and its citizens are guaranteed

justice, equality, and liberty.

Salient Features18

1) Written, Lengthy and Detailed Constitution: Our Constitution is written, lengthy and

detailed. The Constitution of India is an elaborate document and is the most voluminous

Constitution in the world. An important reason for the extraordinary volume of the

Constitution is that it contains detailed provisions regarding numerous aspects of

governance. This was done to minimize confusion and ambiguity in the interpretation of the

Constitution, another reason for its unusual lengthy is the incorporation of the good points

18
Salient Features of Indian Constitution- http://kish.in/salient_features_of_indian_constitution/
Last visited 10th February, 2012

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of various constitutions of the world. The vastness of our country and its peculiar problems

has also added to the bulk of the Constitution.

2) Partly Rigid and Partly Flexible Constitution: The Indian Constitution is neither very

flexible nor very rigid. Some provisions of the Constitution can be amended by a simple

majority of Parliament but for the very important provisions of the Constitution an

amendment passed by a two-thirds majority of Parliament should also be ratified by at least

one-half of the State legislatures. The Indian Constitution thus combines the flexibility of

the British Constitution and the rigidity of the American Constitution.

3) Partly Federal and Partly Unitary: Our Constitution declares India a Union of States

(federation). It prescribes dual set of governments-the Union Government and the State

Governments. The subjects of administration have also been classified into three lists-the

Union List, the State List and the Concurrent List. Both the Union Government and the

State Governments operate within the spheres of their authority. The Union Parliament and

the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrent

subjects. However, if there is a conflict between a Union law and a law passed by one or

many State Legislatures, the law made by the Union Parliament would prevail over the State

law. The Indian Constitution possesses other features of a federation too, for example,

supremacy of the constitution.

The Indian Constitution, though federal in form, has a strong unitary bias. The Central

Government possesses extensive powers compared to the State Governments. The exercise

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

of these powers by the Centre gives the Constitution the strength of a unitary government. A

unitary feature of our Constitution is that it gives Union Parliament the power to alter the

boundaries of the existing States or to carve out new States out of the existing ones. It is on

account of these features that the Indian Constitution is said to be federal in form but unitary

in spirit.

4) Parliamentary System: The Constitution of India adopts Parliamentary system of

government at the Centre and in the States. In such a system of government, the executive

power is wielded by the Council of Ministers which is collectively responsible to the

legislature. The Ministers continue in office so long as they enjoy the confidence of a

majority of Members in the legislature. The Ministers are duty-bound to answer all such

questions and satisfy the Members of the legislature.

5) Fundamental Rights: Certain rights are considered basic or fundamental as they provide

suitable conditions for the material and moral uplift of the people. The Indian Constitution

guarantees a number of such rights to the citizens of India. The fundamental rights as

envisaged in the Constitution of India are justiciable. The Fundamental Rights of

India conferred by the Constitution are:

a) The Right to Equality;

b) The Right to Freedom;

c) The Right against Exploitation;

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Comparative International Environmental Law Professor Nicholas Robinson

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d) The Right to Freedom of Religion;

e) Cultural and Educational Rights; and

f) The Right to Constitutional Remedies.

6) Directive Principles of State Policy: These Principles embody certain ideals and objectives

which should be kept in mind by the Union and State Governments while making laws and

implementing policies. The implementation of these directives was not made compulsory

due to the paucity of resources. The framers of the Constitution expected that as and when

the future Governments would mobilise resources, they would do their best to implement

these directives. The Directive Principles of State Policy are non-justifiable. However, these

principles are considered important in the governance of the country. It becomes a moral

duty of every government to follow them and realise the purpose behind them.

7) Independence of the Judiciary: Our Constitution has taken special care to establish an

independent and impartial judiciary. The judges of the Supreme Court and the State High

Courts have been provided security of service. Once appointed, their salaries and allowances

cannot be altered to their disadvantage by the Government during the course of their tenure.

Nor can they be dismissed before the age of their retirement except in case of proven

misconduct supported by a resolution of Parliament passed by a two-thirds majority.

Security of service of judges is in keeping with the dignity and prestige of the highest

judicial organs of the country. This provision has been made in the Constitution to keep the

judges independent and immune from the control and influence of the Executive. The judges

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

can exercise their discretion in the dispensation of justice even if their decisions go against

the Government.

8) Adult Franchise and Joint Electorates: The Constitution provides for Universal Adult

Franchise. The citizens of India who are 18 years of age and above have been granted the

right to vote irrespective of any qualification pertaining to education, possession of property

or payment of income tax.

9) Establishment of a Welfare State: The Preamble to the Constitution, as modified by the

Forty-second Amendment Act, 1976 and the Directive Principles of State Policy aim at the

establishment of a Welfare State in India. Keeping in view the inherent spirit of the

Constitution, the successive governments at the Centre have been pursuing a policy of

democratic socialism to remove gross inequalities of wealth and to usher in an era of social

and economic equality.

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

d) THE CONSTITUTION OF INDIA AND THE ENVIRONMENT

The Constitution of India has a few particular provisions with regards to the environment. The

42nd Amendment of the Constitution took place in 1976, four years after the Stockholm

Conference. This amendment incorporated two significant Articles to protect the environment.

 Art. 48-A: "The state shall endeavour to protect and improve the environment and to

safeguard the forests and wild life of the country".

 Art. 51- A (g): It shall be a duty of every citizen India.......... "to protect and improve the

environment including forests, lakes and wild life and to have compassion for living

creatures".

Principle 1 of the Stockholm Declaration can be retraced in the Fundamental Rights that are

among the basic features of the Constitution of India. Principle 1 of the Stockholm Declaration

states- Man has the fundamental right to freedom, equality and adequate conditions of life, in

an environment of quality that permits a life of dignity and wellbeing.

Articles 14, 19 and 21 reflect the Principle stated above.

 Article 14- Right to Equality

The state shall not deny to any person equality before the law or equal protection of the laws

within territory of India.

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Comparative International Environmental Law Professor Nicholas Robinson

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In the case, Sushila Saw Mills vs. State of Orissa19, the Supreme Court held that a ban

imposed on the saw mill business operating in the confines of the protected forests did not

violate Article 14, and was neither unreasonable nor arbitrary.

 Articles 19 (1) (g) and 19 (6) - Freedom of trade and business guaranteed

All citizens shall have the right to practice any profession, trade or business.

Art. 19(6) under which ‘reasonable restrictions' can be imposed upon such right in the

interest of the general public.

These freedoms are not absolute. The Constitution recognises the tendencies of a few trades

and businesses which are prone to polluting the flora and fauna of the land along with

discharging sewage into running water bodies like rivers and lakes. This behavior in turn

leads to damaging impacts on vegetative cover, animals, plants, aquatic species, soil, and

human health. Thus Article 19 (6) sets our restrictions on such behavior which adversely

affects the natural resources of the country.

In the case of MC Mehta vs Union of India20, the river Ganga was being polluted by the

discharges of the tanneries which were operating on its banks. The Supreme Court ordered

the business to establish effluent plants within six months of the court order or face closure.

19
(1995) 5 SCC 615
20
(1995) 5 SCC 615

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Comparative International Environmental Law Professor Nicholas Robinson

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 Article 21- Right to Life

No person shall be deprived of his life or personal liberty except according to procedure

established by law.

Though not expressly mentioned, the Right to life encompasses in it, the right to a healthy

environment. In the case of Rural Litigation and Entitlement Kendra (RLEK) vs State of

UP21, the mining operation of limestone in the valley was causing ecological disturbance as

contended by the petitioner. The Supreme Court established Committee of Experts which

found the ecological balance to have been damaged. Though the petitioner never contended

redressal of injury under Article 21, but it is an accepted notion, that the court did operate on

the same premise.

In the Seventh Schedule of the Constitution of India, under Article 246, three lists have been

drawn up giving exclusive legislative powers to the Union and state. The Union list empowers

the Central Government, the State list gives powers to the States and the Concurrent list lists

items on which both the Union and States can make laws, though laws made by the Union

supersede the one made by the States.

 Union List- Fisheries beyond territorial waters, regulation and development of interstate

rivers and river valleys

 State List- Land, Water (storage, drainage and embankment, water power, canals and

irrigation, water supplies)

 Concurrent List- Forest, Wildlife, Boilers

21
(1995) 5 SCC 615

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

e) THE INDIAN LEGISLATURE

(A survey of Environmental Laws in India)

Environmental law, post-independence, started growing its roots in India in the early 70’s.

Inspired by the Stockholm conference, and the fact that India was represented by its head of

state, the only nation to do so, various laws were passed. The Wildlife (Protection) Act 1972 was

the first such statute to be promulgated. In the following years the Water (Prevention and Control

of Pollution) Act of 1974, The Forest (Conservation) Act 1980, The Air (Prevention and Control

of Pollution) Act 1981, and The Environment (Protection) Act 1986 collectively gave the

country a bundle of strong laws.

The Wildlife (Protection) Act 1972 was the first piece of legislation passed to protect the

environment. The Wildlife Act sought to protect species of animals and birds which were under

threat of extinction. There are 410 species of mammals in India which account for 8.86% of the

world's mammals22. Nearly 89 species are listed as threatened in the International Union for

Conservation of Nature and Natural Resources (IUCN) Red List of Threatened Animals (IUCN

2006)23. This includes two species that are locally extinct from India are the Cheetah and the

Indian Javan Rhinoceros. The biggest loss has been the extinction of Asiatic lion. Other

endangered species include endangered mammals like Asiatic Golden Cat, Asiatic Cheetah,

22
Endangered Species of India- http://moef.nic.in/downloads/publicinformation/critically_endangered_booklet.pdf
Last visited on 28th January, 2012
23
List of Endangered Species, IUCN- http://www.iucnredlist.org/apps/redlist/search
Last visited on 28th January, 2012

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

Indian Wild Ass or Khur and Asiatic Wild Dog/ Dhole. There is a huge governmental and non-

governmental drive to save the tiger despite of which the number of tigers in the country

continues to decrease24.

In essence India had a definitive set of environment protection and enhancement acts before the

Rio Declaration came into force. It can be concluded that India thus had a set of laws which

could counter any environment issue but as is typical fell short due to huge expanse of the laws

which give an easy through-fare to exploiters.

The Water (Prevention and Control of Pollution) Act, 1974 was an effort to reduce and stop

pollution in rivers. The Air (Prevention and Control of Pollution) Act, 1981 is made on similar

lines as the Water Act but it goes a few steps forward in terms of details. It was made to take

appropriate steps for the preservation of the natural resources of the earth which, among other

things, includes the preservation of the quality of air and control of air pollution. It became the

first environmental act to not only put into words the complete spectrum of environmental issues

affecting the air pollution in one act but also gave guidelines to not only protected the air but to

also improved its quality. The act must be lauded for it has an all-inclusive outlook towards

defining key environmental terms. The act also puts forwards meticulous standards of air

pollution with particular regard to industries. These standards are effectively backed by severe

penalties. Offences in the Act include flouting the restrictions on the establishments on certain

industries in air pollution control areas, the emission of air pollutants by any person operating an

24
Current Status of Tigers in India- http://www.wpsi-india.org/tiger/tiger_status.php
Last Visited on 31st January, 2012

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Comparative International Environmental Law Professor Nicholas Robinson

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industry in an air pollution control area and listed offences by companies. Penalties include

imprisonment of between 1.5 and 6 years, and fine, additional fine in case of a continuing

offence and continuing offence after one year of conviction: imprisonment of between 2 and 7

years, and fine25.

The Environment (Protection) Act (EPA), 1986, is the first Indian legislation to deal with

environment protection and its components in a holistic way. The EPA was purportedly framed

to give effect to the decisions taken at the UN conference on the human environment held in

1972; however, many critics say that it was the Bhopal tragedy that precipitated the enactment of

the legislation. The EPA provided a framework for management of hazardous substances, prior

assessment of the environmental impact of major developmental projects, discharge of industrial

pollutants and effluents into the environment, guidance for industrial sitting, and management of

chemical accidents.

The EPA takes away the independence of the States with regards to action and legislation

towards issues of the environment. The Act requires the States to get clearance from the Centre

to flag off projects. This political invasion leads to many foreseeable delays 26. Additionally the

central clearance requirement does not always weed out projects which are given the green signal

25
Section 15 of the Air (Prevention and Control of Pollution) Act, 1981 prescribes penalties
26
Maheshwar Dam Issue in Madhya Pradesh- http://www.thaindian.com/newsportal/india-news/madhya-pradesh-
cm-meets-manmohan-singh-on-maheshwar-dam-issue_100358954.html
Last Visited on 28th January, 2012

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

are not always the most eco-friendliest of projects. Some of the projects allowed to flourish are

plain exploitative and ecologically damaging.

The Public Liability Insurance Act, 1991 came on the heels of the Bhopal Gas tragedy27. Its main

aim was to provide relief to victims of industrial disaster victims. It became obligatory for

industrial set-ups to obtain insurance which was equivalent to the capital needed to establish the

industry. The District Administration was responsible in giving compensation to the effected

person in reasonable time.

In June 2010 the National Green Tribunal (NGT) Bill was passed. It heralded a new dawn in

environmental protection. The court has been set in Bhopal and five benches spread around the

country with the sole mission to quickly dispose of environmental protection cases. The court

has been designated to be headed by a sitting or retired Supreme Court judge or the Chief Justice

of a High Court. Its first target will be to wrap up 5,600 cases taken from all the High Courts to

of the country. Compensation can be claimed in case of death, disability, damage to property and

loss of business or employment. Though no limit has been fixed for the compensation, the

tribunal may provide relief and compensation to the victims as it may think fit.

27
The Bhopal disaster (also referred to as the Bhopal gas tragedy) is the world's worst industrial catastrophe. It
occurred on the night of December 2–3, 1984 at the Union Carbide India Limited (UCIL) pesticide plant in Bhopal,
Madhya Pradesh, India. A leak of methyl isocyanate (MIC) gas and other chemicals from the plant resulted in the
exposure of several thousands of people.

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

f) INDIAN JUDICIARY AND ENVIRONMENTAL PROTECTION

i. The Evolution of the Indian Judiciary

The Indian Judiciary has seen the same transformation as has the Indian economy and culture.

From the highly strung cultural and economic transformation into an India which is much more

open and receptive, the Judiciary similarly has gone through a revolution which was both

inspiring and trail blazing. Justice Krishna Iyer, in his own vivid terms, explained that:

“A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be

construed by signals from the grave”.

Justice Krishna Iyer in the landmark decision of Rajendra Prasad vs. State of U.P. observed

that:

“When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the

primary obligation is on Parliament to enact necessary clauses by appropriate amendments.

But if legislative under taking is not in sight, judges who have to implement the Code cannot

fold up their professional hands but must make the provision viable by evolution of

supplementary principles, even if it may appear to possess the flavour of law-making.”28

Late 1970’s saw the Indian courts swing into action under the aegis of Justice P.N. Bhagwati and

Justice V.R. Krishna Iyer when they realised that relaxing the requirements of the doctrine of

28
How far is Judicial Activism Justified?- http://airwebworld.com/articles/index.php?article=1204
Last Visited on 29th January, 2012

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

locus standi was essential to provide justice to the underprivileged sections of society29. As the

emergency faded away and politics rolled back into an unsteady democracy, a subconscious

understanding was formed amongst the lawyers, judges and social activists who took the aid of

investigative journalism to increase the accountability of law enforcement agencies. These

investigations exposed custodial errors, repression of facts, corruption and loopholes in the

chaotic governmental and administrative systems30.

PIL has thus become a necessary rejection of the laissez faire notions of traditional

jurisprudence. PIL today is a system which allows for redressal of the grievances of those

individuals who do not have adequate means to directly approach the Courts. The first reported

case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners 31.

The judgments passed by the courts since then became far more consequential, in public

significance and kept in touch with the letter and spirit of law.

Justice V.R. Krishna Iyer started the principle of liberal interpretation of Article 142 of the

Constitution32. Justice Krishna Iyer quoted Lord Denning in his interpretation of Article 2133:

29
Social Change and Public Interest Litigation in India- http://www.ngosindia.com/resources/pil_sc.php
Last Visited on 29th January, 2012
30
Anil Yadav v. State of Bihar, AIR 1982 SC 1008
31
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
32
Article 142, Constitution of India- “Enforcement of decrees and orders of Supreme Court and orders as to
discovery, etc”
33
Article 21, Constitution of India- Right to Life

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

“Many of the Judges of England have said that they do not make law. They only interpret it.

This is an illusion which they have fostered. But it is a notion which is now being discarded

everywhere. Every new decision - on every new situation - is a development of the law. Law

does not stand still. It moves continually. Once this is recognised, then the task of the Judge is

put on a higher plane. He must consciously seek to mould the law so as to serve the needs of

the time. He must not be a mere mechanic, a mere working mason, laying brick on brick,

without thought to the overall design. He must be an architect - thinking of the structure as a

whole, building for society a system of law which is strong, durable and just. It is on his work

that civilised society itself depends.”34

M. P. Jain, a legal luminary, argues that judicial interpretation of Article 21, which provides that

“No person shall be deprived of his life or personal liberty except according to procedure

established by law”; has led to a vast extension of substantive rights.

According to Jain:

“The interpretation of Article 21 is the Indian version of the American concept of due process

of law, but the scope of the expansion into the substantive domain engineered by the Indian

Court far exceeds that of its American counterpart. The Indian Court has emerged relatively

unscathed in recent decades as a leading actor in the ordering of domestic priorities within the

34
Judicial Interpretation of Article 21 of Constitution of India by Abhay Ostwal- http://legal-
articles.deysot.com/constitutional-law/judicial-interpretation-of-article-21-of-the-indian-constitution.html
Last Visited on 28th January, 2012

Rajendra Prasad v State of U.P, 1979 SCR (3) 78

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

polity can be attributed in no small measure to a constitutional ethos that encourages all

institutions, including the judiciary, to become active participants in the realization of

particular ideological aspirations. In effect there exists a constitutional mandate for judicial

activism.”35

This interpretation is seen in the case of Maneka Gandhi vs. Union of India. The case involved

the refusal by the government to grant a passport to Gandhi, which thus restrained her liberty to

travel. In its ruling in the case, the Supreme Court of India in a departure from its earlier stand

taken in its ruling in A.K. Gopalan vs. State of Madras expanded the scope and content of the

right to life and liberty by introducing the concept of substantive due process to Indian law. In

writing that decision, Justice M Hamedullah Beg found that:

"Democracy is based essentially on free debate and open discussion, for that is the only

corrective of government action in a democratic setup."36

In the SP Gupta case37 the Supreme Court put into fine words the concept of PIL as it is

recognized under Indian Jurisprudence:

35
MP Jain “Indian Constitutional Law (2 Vols)”, 6th Edition 2010, Revised by Samraditya Pal & Ruma Pal
36
Maneka Gandhi vs Union of India, 1978 AIR 59
37
SP Gupta v. Union of India and Others AIR (1982) SC149

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Comparative International Environmental Law Professor Nicholas Robinson

2011-12

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of

persons by reason of violation of any constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without authority of law or any such

legal wrong or legal injury or illegal burden is threatened and such person or determinate

class of persons by reasons of poverty, helplessness or disability or socially or economically

disadvantaged position unable to approach the court for relief, any member of public can

maintain an application for an appropriate direction, order or writ in the High Court under

Article 22638 and in case any breach of fundamental rights of such persons or determinate

class of persons, in this court under Article 3239 seeking judicial redress for the legal wrong or

legal injury caused to such person or determinate class of persons.”

38
Article 226, Constitution of India- Power of High Courts to issue certain writs
39
Article 32, Constitution of India- Remedies for enforcement of rights conferred by this Part.

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 Environmental Law in India

Comparative International Environmental Law Professor Nicholas Robinson

2011-12

ii. Landmark Indian Cases and Environmental Laws and Principles

The Indian judiciary, as a part of its activism, has for long used established international

environmental principles while adjudicating a host of landmark environmental cases in India.

These cases reflect the high standards of awareness of the Indian judiciary which not only took

judicial activism to unseen heights in the country but also provided strong precedents in

environmental actions. The various cases discussed below have had the Judiciary seeking

arguments from various quarters of the world- The various UN Conventions, European Union

Laws and Precedents from Common Law Nations.

The Supreme Court of India has referred to the Stockholm Declaration to be the ‘Magna Carta’

of our environment40. The Supreme Court refers to several declarations as “enacted”. In a case

the Rio Declaration on Environment and Development was described as “agreements which were

enacted” although their importance is rarely discussed41. With the emphasis placed on such non-

binding agreements by the county’s highest court has also encouraged environmental lawyers to

consider them as logical and heavyweight arguments. The Legislators are also influenced and

begin to consider these declarations as significant. Thus, they are informally transformed into

"Customary International Law”. As the Courts believe these unincorporated documents to hold

40
Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392
41
Karnataka Indus. Areas Dev. Bd. v. Kenchappa, 2006, A.I.R. SC 2546, para. 54: "The Earth Summit held in Rio
de Janeiro in 1992 altered the discourses of environmentalism in significant ways. Sustainability, introduced in the
1987 Brundtland Report-Our Common Future-and enacted Rio agreements, became a new and accepted code
word for development"

30