Environmental Law Notes1

• Early stages of planet/Ice ages = not very suitable for life /early stages of life /humans
were hunter gatherers

• Holocene = Stable and warm period in human history. In this nurturing environment,
humans developed from hunter-gatherers to urban and agricultural settled societies.

• Anthropocene = The geological where changes are happening in the planet because of
human influence. It is predicted that earth will become unstable in later stages of this
epoch where predictions are for a much hotter and less stable climate, a “hot-house
Earth” scenario.

• Planetary Boundaries = These are environmental limits for the planet within which the
climate and other environmental conditions in the Anthropocene are likely to resemble
those of the Holocene.
o https://ucmp.berkeley.edu/quaternary/holocene.php#:~:text=The%20Holocene
%20is%20the%20name,the%20Holocene%20has%20been%20a
o https://link.springer.com/chapter/10.1007/978-981-15-1443-2_33

• Anthropocentricism = https://typelish.com/b/what-is-anthropocentrism-100609

•
o Feminist criticisms/Ecological Feminism/ Environmental Feminism/Climate
Feminism
▪ https://www.nrdc.org/stories/what-climate-feminism
▪ https://www.boell.de/en/feminist-perspectives-on-global-
environmental-justice
o Core-Periphery Theories
▪ https://www.econstor.eu/bitstream/10419/230319/1/manuscript-Core-
Periphery-Model.pdf
o Tragedy of Commons

1
Written by Prof Vishnu Konoorayar, HNLU. This document contains copyrighted contents of Dr. Vishnu and other
authors and organisations. This is circulated among HNLU Environmental Law students (2023 Jan-May) for
academic purposes only and it shall not be used for any further publications or commercial purposes.

1
 ▪https://www.masterclass.com/articles/understanding-the-tragedy-of-
the-commons
o Other references made in the class
▪ Prof BS Chimnis argument of a global imperial state in the making -
http://www.ejil.org/pdfs/15/1/334.pdf
▪ Environmental Justice and race -
https://openyls.law.yale.edu/bitstream/handle/20.500.13051/6282/16_1
8YaleJIntlL319_1993_.pdf?sequence=2&isAllowed=y

• Eco-centricism /Deep Ecology arguments : Ecocentrism finds inherent (intrinsic) value

in all of nature. The core idea of this viewpoint is the postulation that humanity is
inseparable from nature. Neither individuals nor living organisms are important, but it is
the totality of nature which should be our concern and the target of environmental
management and policy. In the reversed sense, it is not possible to injure nature
without injuring an integral part of humanity.

• https://mahb.stanford.edu/blog/statement-
ecocentrism/#:~:text=Ecocentrism%20finds%20inherent%20(intrinsic)%20value,but%20
there%20are%20related%20worldviews

• In T.N. Godavarman Thirumulpad v. Union of India (2012) 3 SCC 277, a case regarding
the protection of Asiatic Wild Buffalo in the State of Chhattisgarh, the SC discussed in
length about Anthropocentricism and Ecocentricism.
o At para 14 the SC held: “Environmental justice could be achieved only if we drift
away from the principle of anthropocentric to ecocentric. Many of our principles
like sustainable development, polluter-pays principle, inter-generational equity
have their roots in anthropocentric principles. Anthropocentrism is always
human interest focussed and non-human has only instrumental value to
humans. In other words, humans take precedence and human responsibilities to
non- human based benefits to humans. Ecocentrism is nature centred where
humans are part of nature and non-human has intrinsic value. In other words,
human interest do not take automatic precedence and humans have obligations
to non-humans independently of human interest. Ecocentrism is therefore life-
centred, nature-centred where nature include both human and non- humans.”
o At para 9 the court said: “Laws are man-made, hence there is likelihood of
anthropocentric bias towards man, and rights of wild animals often tend to be of

2
 secondary importance but in the universe man and animal are equally placed,
but human rights approach to environmental protection in case of conflict, is
often based on anthropocentricity.”
o In para 19: “The public trust doctrine developed in M.C. Mehta vs. Kamalnath
(1997) 1 SCC 388, is also meant to ensure that all humans have equitable access
to natural resources treating all natural resources as property and not life. That
principle also has its roots in anthropocentric principle. Precautionary principle
and polluter-pays principles affirmed by our Court in Vellore Citizens Welfare
Forum vs. Union of India and Others (supra) are also based on anthropocentric
principle since they also depend on harm to humans as a pre- requisite for
invoking those principles. The principle of sustainable development and inter-
generational equity too pre-supposes the higher needs of humans and lays down
that exploitation of natural resources must be equitably distributed between the
present and future generations. Environmental ethics behind those principles
were human need and exploitation, but such principles have no role to play
when we are called upon to decide the fate of an endangered species or the
need to protect the same irrespective of its instrumental value.”
o In para 20 the Court said: “Anthropocentrism considers humans to be the most
important factor and value in the universe and states that humans have greater
intrinsic value than other species. Resultantly, any species that are of potential
use to humans can be a reserve to be exploited which leads to the point of
extinction of biological reserves. Further, that principle highlights human
obligations towards environment arising out of instrumental, educational,
scientific, cultural, recreational and aesthetic values that forests has to offer to
humans. Under this approach, environment is only protected as a consequence
of and to the extent needed to protect human well being. On the other hand
ecocentric approach to environment stress the moral imperatives to respect
intrinsic value, inter dependence and integrity of all forms of life. Ecocentrism
supports the protection of all life forms, not just those which are of value to
humans or their needs and underlines the fact that humans are just one among
the various life forms on earth.”

• Very often the courts in India have emphasized on the importance of bringing
Ecocentricim as the objective of our legal and policy discourse. For example in Animal
Welfare Board of India v. A. Nagaraja (2014) 7 SCC 547, the SC, in the context of the
legality of Jellikkettu- the traditional bull fighting in the State of Tamil Nadu, at para 62
stated: “Every species has a right to life and security, subject to the law of the land,
which includes depriving its life, out of human necessity. Article 21 of the Constitution,
while safeguarding the rights of humans, protects life and the word “life” has been given
an expanded definition and any disturbance from the basic environment which includes
all forms of life, including animal life, which are necessary for human life, fall within the
meaning of Article 21 of the Constitution. So far as animals are concerned, in our view,
“life” means something more than mere survival or existence or instrumental value for
human-beings, but to lead a life with some intrinsic worth, honour and dignity. Animals’

3
 well-being and welfare have been statutorily recognised under (the PCA Act)”. After a
lengthy discussion on ecocentricism and rights of animals the court at para 91.9 said
“Parliament, it is expected, would elevate rights of animals to that of constitutional
rights, as done by many of the countries around the world, so as to protect their dignity
and honour.”
• Also, in the recent case of Mohmd Salim v. State of Uttarakhand (2017), the judiciary
granted rights comparable to fundamental rights to the rivers Ganga and Yamuna, as
well as all of their tributaries, streams, and any natural water flowing continuously or
intermittently from those rivers. Similar rights were accorded to glaciers, rivers,
streams, rivulets, lakes, air, meadows, dales, jungles, forests, etc. in Lalit Miglani v. State
of Uttarakhand (2017). In both of these cases, the UK HC identified persons in loco
parentis as the human face to protect, conserve, and preserve the right-holders. Commented [h1]: The phrase describes the legal obligation of a
person or organisation to perform some of the duties and fulfill the
Similarly the NGT in Sandeep Lahariya v. State of MP (2013) highlighted the obligations of a parent.
fundamental duty of every citizen, under Article 51A(g) of the Constitution, to protect
and improve the environment ‘not only for the benefit of the human beings and citizens
of this country but having regard to all living creatures". In SK Shetye v. MoEF (2013), the
NGT stated: "It is aptly said that rivers, mountains, trees, birds, flora, and fauna have no
language, particularly, in legal parlance, and, therefore, they speak through human
beings."

EVOLUTION OF ENVIRONMENTAL LAW PRINCIPLES: HISTORY, POLITICS

• Evolution of environmental law MAY BE studied in different time frames based on our
earlier discussion on Ecocentricism and Anthropocentricism. You may question the
necessity of these timeframes OR have different timeframes. My classification (slightly
modifying the classification of Edith Brown Weiss in would as follows with reasons:
o Before 1900’s [classical era of anthropocentricism]
o From 1900 – to 1945 [Early stages of the need of protecting the environment –
Not with ecological reasons but due to the realization that harm done to
environment can go against the interest of human beings]
o From 1945 – to 1972 [Early stages of Environmentalism, Scientific evidences of
environmental degradation & the involvement of the United Nations (and its
agencies) in setting the environmental agenda ]
o From 1972 – to 1992- From Stockholm to Rio [Increased role of United Nations
in the context of increased scientific evidences of anthropogenic reasons of
environmental degradation; Debate between Economic development versus
environmental protection between the rich western
countries/colonizers/industrialized countries (Global North) and the poor/newly
independent/developing/least developed countries (Global South)
o From1992 – to present [More attention to Ecocentricism with attempts to
balance the three pillars of sustainable development viz. (a) Environmental
protection; (b) Economic development; (c) Social justice . This period also saw
increased attempts to recognize the intrinsic value of biotic & abiotic elements
of the planet ]

4
o See the classification of Edith Brown Weiss at
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2684&cont
ext=facpub

o In Animal Welfare Board of India v. A. Nagaraja (2014) 7 SCC 547, in the case
relating to Jellikkettu, the SC in the context of Anthrpocentricim v Ecocentricism
analysed the growth of International environmental law. At para 47 the SC
stated: “We may, at the outset, indicate unfortunately, there is no international
agreement that ensures the welfare and protection of animals. United Nations,
all these years, safeguarded only the rights of human beings, not the rights of
other species like animals, ignoring the fact that many of them, including Bulls,
are sacrificing their lives to alleviate human suffering, combating diseases and as
food for human consumption. International community should hang their head
in shame, for not recognizing their rights all these ages, a species which served
the humanity from the time of Adam and Eve. Of course, there has been a slow
but observable shift from the anthropocentric approach to a more nature’s right
centric approach in International Environmental Law, Animal Welfare Laws etc.
Environmentalist noticed three stages in the development of international
environmental law instrument, which are as under:
▪ (a) The First Stage: Human self-interest reason for environmental
protection - The instruments in this stage were fuelled by the recognition
that the conservation of nature was in the common interest of all
mankind. Some the instruments executed during this time included the
Declaration of the Protection of Birds Useful to Agriculture (1875),
Convention Designed to Ensure the Protection of Various Species of Wild
Animals which are Useful to Man or Inoffensive (1900), Convention for
the Regulation of Whaling (1931) which had the objective of ensuring the
health of the whaling industry rather than conserving or protecting the
whale species. The attitude behind these treaties was the assertion of an
unlimited right to exploit natural resources – which derived from their
right as sovereign nations.
▪ (b) The Second Stage: International Equity - This stage saw the extension
of treaties beyond the requirements of the present generation to also
meet the needs to future generations of human beings. This shift
signalled a departure from the pure tenets of anthropocentrism. For
example, the 1946 Whaling Convention which built upon the 1931 treaty
mentioned in the preamble that “it is in the interest of the nations of the
world to safeguard for future generations the great natural resource
represented by the whale stocks”. Similarly, the Stockholm Declaration of
the UN embodied this shift in thinking, stating that “man ...... bears a
solemn responsibility to protect and improve the environment for
present and future generations” and subsequently asserts that “the
natural resources of the earth .... must be safeguarded for the benefit of

5
 present and future generations through careful planning and
management”. Other documents expressed this shift in terms of
sustainability and sustainable development.
▪ (c) The Third Stage: Nature’s own rights - Recent Multinational
instruments have asserted the intrinsic value of nature. UNEP Biodiversity
Convention (1992) “Conscious of the intrinsic value of biological diversity
and of the ecological, genetic, social, economic, educational, cultural,
recreational and aesthetic values of biological diversity and its
components .... [we have] agreed as follows:......”. The World Charter for
Nature proclaims that “every form of life is unique, warranting respect
regardless of its worth to man.” The Charter uses the term “nature” in
preference to “environment” with a view to shifting to non-
anthropocentric human- independent terminology.”

• BEFORE 1900’S: Classical Era of Anthropocentricism?? . Some of the key pointers of our
class discussion include:

o Religion and Environmental Protection: There are two broad streams of

literature on the relationship between religion/s and environment. See a PPT
(prepared by someone else ) @
https://www.cdeep.iitb.ac.in/slides/S14/HS200/HS200-L21.pdf ..... One stream
of literature says that all/some religions are fundamentally anthropocentric.
Where as other set believes otherwise.
o See few of those literature that argues about the anthropocentric nature of
religion:
▪ https://www.britannica.com/topic/anthropocentrism
▪ Simkins, R. A. (2014). The Bible and anthropocentrism: putting humans in
their place. Dialectical Anthropology, 38(4), 397–413.
http://www.jstor.org/stable/43895115
▪ https://link.springer.com/referenceworkentry/10.1007/978-0-387-
71802-6_34
▪ https://digitalcommons.acu.edu/cgi/viewcontent.cgi?article=1041&conte
xt=dialogue
o See few parallel arguments on the relationship between religion and
environment :
▪ https://www.globalscientificjournal.com/researchpaper/A_NON_ANTHR
OPOCENTRIC_ENVIRONMENTALIST_OUTLOOK_OF_THEOCENTRISM.pdf
▪ https://ojs.unm.ac.id/elektikakontemporer/article/viewFile/42473/19961
▪ In the Judeo-Christin tradition says ‘God gave the earth to his people and
their offspring as an everlasting possession to be passed down to each
generations’ [Genesis 1: 1-31,17:7-8 as quoted in Edith Brown Weiss
(2011) “The Evolution of International law”, 54 Japanese Y.B.Int.L, 1-27.
▪ Islamic Law regards each generation as having inherited ‘all the resources
of life and nature’ and having certain duties to God in using them’ [Abou

6
 Bakr ABK, Islamic Principles for the Conservation of the Natural
Environment (1983)]
▪ Similarly Budhism, Hinduism & Jainism has a reverence for environmental
protection. Budha said’ Environment and Natural Resources are things
that we borrowed from future Generation

o The Concept of Pre-Industrial Climate Baseline : The natural state of the Climate
before changes were seen due to human interventions. This could mean the
concentration of various gases in the planets atmosphere
(https://education.nationalgeographic.org/resource/atmosphere ) OR the
average global/regional temperature before the massive level of human
intervention to which the natural sinking capacity of the planet
(http://edugreen.teri.res.in/explore/climate/sinks.htm ) fails ..see the video @
https://earthobservatory.nasa.gov/world-of-change/global-temperatures . Read
▪ Defining a true 'pre-industrial' climate period @
https://www.bbc.com/news/science-environment-38745937
▪ What is a pre-industrial climate and why does it matter? @
https://www.downtoearth.org.in/news/climate-change/what-is-a-pre-
industrial-climate-and-why-does-it-matter--58093

o Empires, Imperialism, Colonization and Environmental protection: The

fundamental goals of colonizing empires were to supply of timber for building
ships /supply natural raw materials for their industrial revolution / extension of
agriculture (grains/sugar/tobacco/coffee/tea etc for feeding their people even
by clearing the forest in the colonies ) etc. See few literature:
▪ Wood, Lawrence. (2015). The Environmental Impacts of Colonialism. In
BSU Honors Program Theses and Projects. Item 119. Available at:
http://vc.bridgew.edu/honors_proj/119
▪ Pouchepadass, J. (1995). Colonialism and Environment in India:
Comparative Perspective. Economic and Political Weekly, 30(33), 2059–
2067. http://www.jstor.org/stable/4403103
▪ “European imperialism was also inseparable from the history of global
environmental change. Metropolitan countries sought raw materials of
all kinds, from timber and furs to rubber and oil. They established
plantations that transformed island ecologies. Settlers introduced new
methods of farming; some displaced indigenous peoples and their
methods of managing the land. Colonial cities, many of which have
become great conurbations, fundamentally changed relationships
between people and nature. Consumer cultures, the internal combustion
engine, and pollution are now ubiquitous. By contrast, while natural
resources have been intensely exploited, a related process, the rise of
conservationist practices and ideas, was also deeply rooted in imperial
history.” Quoted from the abstract of the book chapter: Beinart,
William, and Lotte Hughes,'Introduction', Environment and

7
 Empire (Oxford, 2007), https://doi.org/10.1093/oso/9780199260317.003
.0006
▪ Joseph Murphy, Environment and Imperialism: Why Colonialism Still
Matters @
https://www.see.leeds.ac.uk/fileadmin/Documents/research/sri/working
papers/SRIPs-20_01.pdf

o Slavery and Environmental Protection

▪ Meaning of Slavery https://www.britannica.com/topic/slavery-sociology
• Ancient/Historical/Trans-Atlantic Slavery & impact of
environment and climate:
• Read the abstract of the book “Scars on the Land: An
Environmental History of Slavery in the American South” .
It says ‘Scars on the Land is the first comprehensive history
of American slavery to examine how the environment
fundamentally formed enslaved people's lives and how
slavery remade the Southern landscape. Over two
centuries, from the establishment of slavery in the
Chesapeake to the Civil War, one simple calculation had
profound consequences: rather than measuring
productivity based on outputs per acre, Southern planters
sought to maximize how much labor they could extract
from their enslaved workforce. They saw the landscape as
disposable, relocating to more fertile prospects once they
had leached the soils and cut down the forests. On the
leading edge of the frontier, slavery laid waste to fragile
ecosystems, draining swamps, clearing forests to plant
crops and fuel steamships, and introducing devastating
invasive species. On its trailing edge, slavery left eroded
hillsides, rivers clogged with sterile soil, and the extinction
of native species. While environmental destruction fueled
slavery's expansion, no environment could long survive
intensive slave labor. The scars manifested themselves in
different ways, but the land too fell victim to the slave
owner's lash.’ Available at
https://www.research.ed.ac.uk/en/publications/scars-on-
the-land-an-environmental-history-of-slavery-in-the-amer
• May also read Book Chapter ‘Environmental Aspects of the
Atlantic Slave Trade and Caribbean Plantations’ @
https://academic.oup.com/book/40609/chapter-
abstract/348225067?redirectedFrom=fulltext
• Modern forms of slavery: Read what is Modern Forms of slavery.
• ‘Climate-induced disaster, environmental degradation and
growing scarcity of resources are affecting many
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 communities, driving millions of people into poverty and
forcing many to migrate in search of work, food or safety.
In many cases, victims of the climate emergency will be
left more vulnerable to forms of modern slavery,
including human trafficking, forced labour and child
slavery’. See https://www.antislavery.org/what-we-
do/climate-change

o Different Generations of Industrial Revolutions and Environmental Protection:

▪ There are 4 or 5 generations of Industrial revolution according to
literature. See https://ied.eu/project-updates/the-4-industrial-
revolutions/
• Impact of each industrial revolution on environment would be
different. For example first two industrial revolutions were
primarily focused on fuels used (such as coal, crude oil) burning of
which caused irreversible damage to the environment. While the
aftereffects of first two industrial revolutions still continue, the
third and fourth are focusing on computers/internet/AI etc which
raises the dangers of electronic waste on the planet
• Also link industrial revolution and its connection with
• Colonization/imperialism
• Global capitalism and Global poverty (with varied
outcomes that would impact the planet negatively, for
example ---Colonization supported industrial revolution—
Industrial revolution lead to creation of wealth which
further resulted in mechanization and invention of new
technology ----IPR is seen as a regime created by the global
capitalism to protect these inventions from free riders ---
Since the rich countries had exploited the planet to more
than its sinking capacity, which caused irreversible harm to
the planet such as global warming/climate change, there is
compulsion on the newly independent/non-industrialized
countries to use Environmentally sustainable (sound)
Technologies /Green Technology but these technologies
are patented by rich countries and highly costly
• Consumerism: Industrial revolution resulted in
consumerism and consumerism affects the planet the
negative way . See https://greentumble.com/the-negative-
effects-of-consumerism/ . Consumerism further resulted
in resource depletion & environmental challenges (such as
waste management challenges- for example - plastic waste
management

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 o Different generation of warfare, Great Wars and environmental degradation
▪ Different Generations of Warfare: See
https://en.wikipedia.org/wiki/Generations_of_warfare . Each of these
generations impacted the environment differently. Also see
https://ceobs.org/how-does-war-damage-the-environment
▪ Great Wars and environmental Degradation:
https://en.wikipedia.org/wiki/Environmental_impact_of_war

o See the Wikipedia page:

https://en.wikipedia.org/wiki/Timeline_of_history_of_environmentalism

o Some of the cases and their nature: Bering Sea Seals Case (1892)
https://law.jrank.org/pages/4732/Bering-Sea-Dispute.html

o Some of the Colonial legislations in India that are connected with environment
are
▪ The CPC 1908 (relevant provisions)
▪ Indian Penal Code, 1860 (relevant provisions)
▪ The North India Canal and Drainage Act, 1873
▪ The Indian Easement Act, 1882 (relevant provisions)
▪ The Indian Fisheries Act, 1897
▪ The Indian Ports Act, 1908 (relevant provisions)
▪ The Indian Forest Act, 1927

Have a look at the purposes and objectives of these legislation

• From 1900 – to 1945 [Early stages of the need of protecting the environment – Not with
ecological reasons but due to the realization that harm done to environment can go
against the interest of human beings]
o Anthropocentricism still the only view of relationship between man and nature.
The focus of international environmental law was comparatively widened post-
1900 wherein Countries started making far-reaching international agreements
with wider focus. Some of the conventions are:
▪ Convention for the Protection of Birds Useful to Agriculture 1902; the
Convention for the Protection of Migratory Birds in the United States and
Canada, 1916; the Treaty for the Preservation and Protection of Fur Seals,
1911; the London Convention for the Protection of Wild Animals, Birds
and Fish in Africa, 1900 etc.
▪ London Convention on Preservation of Fauna and Flora in their Natural
State, 1933; the Washington Convention on Nature Protection and Wild
Life Preservation, 1940 etc.

o World War 1 and Environment : In terms of environmental impact, World War I

was most damaging, because of landscape changes caused by trench warfare.

10
 Digging trenches caused trampling of grassland, crushing of plants and animals,
and churning of soil. Erosion resulted from forest logging to expand the network
of trenches. Soil structures were altered severely, and if the war was never
fought, in all likelihood the landscape would have looked very differently today.
Read more @ https://www.lenntech.com/environmental-effects-
war.htm#ixzz7s1wktsqV

▪ Also watch the lecture by Tait Keller, Associate Professor and Chair of
History, Rhodes College @
https://nationalhumanitiescenter.org/education-material/the-
environmental-impact-of-world-war-i/
▪ Also read Heiderscheidt, Drew (2018) "The Impact of World War one on
the Forests and Soils of Europe," Ursidae: The Undergraduate Research
Journal at the University of Northern Colorado: Vol. 7 : No. 3 , Article 3.
Available at: https://digscholarship.unco.edu/urj/vol7/iss3/3

o League of Nations and the Environment: After the First World War, the
predecessor of the current UN, the LEAGUE OF NATIONS was founded. Though it
is a failed organization (it failed to prevent WW2), some scholars argue that it
had some significance and contributions in protecting the environment
▪ Aloni, Omer. (2021). The League of Nations and the Protection of the
Environment. 10.1017/9781108937399. Available at
https://www.researchgate.net/publication/351243143_The_League_of_
Nations_and_the_Protection_of_the_Environment
▪ WÖBSE, A.-K. (2008). Oil on Troubled Waters? Environmental Diplomacy
in the League of Nations. Diplomatic History, 32(4), 519–537.
http://www.jstor.org/stable/24915999

o Permanent Sovereignty over Natural Resources (PSNR) : The Principle says that
a state has the sovereign power over its own natural resources and the
development, utilization, and exploitation of such resources shall be subject to
national policy . Read Pereira, Ricardo, Permanent Sovereignty Over Natural
Resources in the 21st Century: Natural Resource Governance and the Right to
Self-Determination of Indigenous Peoples Under International Law (1 12, 2013).
Melbourne Journal of International Law, Vol. 14, No. 2, 2013, Available at
SSRN: https://ssrn.com/abstract=3656492
▪ However the question remains who has the PSNR? The Country (is there
a difference between the State and the Nation?) OR its PEOPLES .
▪ Another question may be the rights of the Colonial powers (including
companies and individuals) who had acquired rights over the natural
resources in the former colonies. Can these Natural Resources be
protected as they are mostly private property of those companies and
individuals? For example the private estates owned by British companies
in India. While answering these questions it is also important to do so by

11
 understanding the concept of ‘Self Determination’ .
https://www.law.cornell.edu/wex/self_determination_(international_law
)#:~:text=Self%2Ddetermination%20denotes%20the%20legal,a%20numb
er%20of%20international%20treaties
▪ The first resolution on PSNR was the United Nations General Assembly
Resolution 626 (VII) which recognized that countries have the right to
freely use and exploit their natural resources for their economic
development and progress.
https://digitallibrary.un.org/record/211441?ln=en
▪ The most important instrument on PSNR came in the form of resolution
1803 (XVII) which guaranteed the right of PSNR to states and peoples.
https://www.ohchr.org/sites/default/files/Documents/ProfessionalIntere
st/resources.pdf
▪ In 2007, with the adoption of the United Nations Declaration on the
Rights of Indigenous Peoples, the United Nations also recognized the
right of indigenous people over their traditionally owned or occupied
land.
https://www.un.org/development/desa/indigenouspeoples/declaration-
on-the-rights-of-indigenous-peoples.html &
https://humanrights.gov.au/about/news/speeches/indigenous-peoples-
permanent-sovereignty-over-natural-resources

o Trail Smelter Case: The Arbitral Tribunal stated that “…no State has the right to
use or permit the use of its territory in such a manner as to cause injury by fumes
in or to the territory of another or the properties or persons therein, when the
case is of serious consequence and the injury is established by clear and
convincing evidence.”
▪ For the brief facts visit
https://www.encyclopedia.com/environment/encyclopedias-almanacs-
transcripts-and-maps/trail-smelter-arbitration
▪ For detailed reading see https://legal.un.org/riaa/cases/vol_III/1905-
1982.pdf

o Prohibition of Cross Boarder Harm

▪ No Harm Principle : No Harm principle was an extension of Harm
principle by John Stuart Mill. Mill says John Stuart Mill says “the only
purpose for which power can be rightfully exercised over any member of
a civilized community, against his will, is to prevent harm to others” (On
Liberty) (read more @ https://en.wikipedia.org/wiki/Harm_principle )
• The no-harm rule is a widely recognised principle of customary
international law whereby a State is duty-bound to prevent,
reduce and control the risk of environmental harm to other
states(Ian Brownlie in: Principles of Public International Law, 7th

12
 ed., 2008, pp.275-285; Patricia Birnie, Alan Boyle and Catherine
Redgwell in: International Law and the Environment, 3rd ed.,
Oxford 2009, pp.143-152.
• Principle 16 of Rio Declaration: States have, in accordance with
the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own
resources pursuant to their own environmental and
developmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits
of national jurisdiction.
• Also refer to Trail Smelter ratio which says ‘“…no State has the
right to use or permit the use of its territory in such a manner as
to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious
consequence and the injury is established by clear and convincing
evidence.”
• Trail Smelter decision emphasizes on : ‘serious
consequence’ and the injury is to be established by ‘clear
and convincing evidence’
• Article 7(1) of the UN Convention on the Law of the Non-
Navigational Uses of International Watercourses, 1997 &
Article 2(a) of ILC Draft Articles on the Prevention of
Transboundary Harm from Hazardous Activities, 2001
refers to an obligation not to cause ‘significant harm’
• In Pulp Mills Case (Argentina v. Uruguay, 2010), the ICJ
refers to ‘significant damage to the environment of
another State’.
• So the nature of injury in No Harm Principle is still
problematic

• Similarly trail smelter emphasize on ‘by fumes in or to the

territory of another or the properties or persons therein’
• Principle 21 of Stockholm Declaration goes beyond this
and speaks about a ‘duty not to cause damage ‘to the
environment of other States or of areas beyond the limits
of national jurisdiction’.
• Principle 21 does not qualify the term ‘damage’ with any
adjective suggesting that the magnitude of ‘damage’ must
be assessed as a whole based on:
▪ Significant harmful effects on the environment or
on the activities carried out in another State

13
 ▪ Ratio between prevention costs and potential
damage
▪ Impact on other States’ capacity to use their
natural wealth and resources in a similar way
▪ Health of the population of another State.
▪ In this regard read more @ ‘Commission on
Sustainable Development, Report of the Expert
Group Meeting on Identification of Principles of
International Law for Sustainable Development,
1995’ at
https://digitallibrary.un.org/record/212979/?ln=en

• May read the relevance of this principle in the context of climate

change ‘The relevance of the no-harm principle to climate change
law and politic @
https://www.elgaronline.com/view/journals/apjel/19-
1/apjel.2016.01.04.xml?tab_body=fulltext

▪ Good Neighborliness Principle ‘obligates States to main good

relationship with neigbours, cooperate and collaborate with each other
and reconcile their interests with the interests of neighboring states and
resolve disputes through peaceful means’. For a detailed analysis read :
Sucharitkul, Sompong, "The Principles of Good-Neighborliness in
International Law" (1996). Publications. Paper 559.
http://digitalcommons.law.ggu.edu/pubs/559
• Origin of the principle from the biblical principle of ‘Love your
neighbour’ . Read Donaghue v. Stevenson (1932) in this context
where the HoL asked “The rule that you are to love your
neighbour becomes in law, you must not injure your neighbour;
and the lawyer's question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law, is my neighbour?”. Read
https://www.scottishlawreports.org.uk/resources/donoghue-v-
stevenson/case-report
• Who are neighbors in the context of No Harm Principle?: In
Nuclear Tests (New Zealand v. France 1973) New Zealand
contended that through the tests, France violated both the rights
of all members of the international community as well as the
specific rights of New Zealand. However ICJ granted relief
regarding the specific rights of New Zealand only, as opposed to
the rights claimed by New Zealand on behalf of the international
community.

14
o World War 2 and Environment: World War II left deep marks on the natural
environment of the war zones, home fronts and areas occupied by war
industries. The global war left trash and ruins everywhere in its wake, consisting
of abandoned front lines, half-sunken ships, empty bases and bombed cities in
Europe and Asia. Read more @
https://www.helsinki.fi/en/news/economics/todays-environmental-problems-
sparked-world-war-ii
▪ Japan's Post-Second World War environmental problems @
https://archive.unu.edu/unupress/unupbooks/uu35ie/uu35ie08.htm
▪ https://www.nbcnews.com/science/science-news/world-war-ii-
shipwreck-leaking-pollutants-altering-environment-rcna52741

o Establishment of the United Nations : UN was founded in the year 1945 after
second world war with the following objectives: (a) To keep peace throughout
the world; (b) To develop friendly relations among nations;(c)To help nations
work together to improve the lives of poor people, to conquer hunger, disease
and illiteracy, and to encourage respect for each other’s rights and freedoms;(d)
To be a centre for harmonizing the actions of nations to achieve these goals,
Does environmental protection fall into any of these catagories? Unfortunately
NO in the early days after 1945. However later on the following article was
interpreted to include the objectives of environmental protection
▪ UN Charter : Although environmental protection is not specifically
mentioned in the Charter of the United Nations, the organization has
become the leading catalyst for and coordinator of activities in this
field. Article 1(3), which states that ‘international cooperation in solving
international economic, social, cultural or humanitarian problems’ as one
of the purposes of establishing the United Nations was interpreted to
include environmental protection objectives.
▪ In the year 1947, the UN Economic and Social Council (ECOSOC)
convened the United Nations Conference on the Conservation and
Utilization of Resources (UNCCUR), which emphasised the need for
international action to establish balanced approach to the management
and conservation of natural resources.
▪ Thereafter many resolutions were passed and conferences were
convened at the auspices of the UN organs aiming environmental
protection. Examples Conference on the Conservation of the Living
Resources of the Sea, 1954; International Convention for the Prevention
of Pollution by Sea by Oil, 1954 etc.

o Other Important Cases (which we did not discuss in the class) : Lac Lanoux
Arbitration Case (1957), where the arbitral tribunal affirmed the principles
concerning the limitations on the right of States in their use of shared rivers and
asserted the importance of cooperation among states. Lake Lanoux (situated in

15
 southern France near the border of Spain) is fed by several streams that all
originate in France. Water flows out of the lake in a single stream that joins the
Carol River before crossing into Spain. In the 1950's, France began developing a
plan to divert water from Lake Lanoux over a 789 meter drop to generate
hydroelectric energy. Even though France promised to return the diverted water
to the Carol River, Spain pressed France to arbitrate the dispute because Spain
believed the plan would violate its water rights under a series of treaties signed
in 1866. The arbitration tribunal rejected Spain's arguments because the French
plan promised not to alter the volume of water entering Spain through the Carol
River. https://www.ecolex.org/details/court-decision/lake-lanoux-arbitration-
france-v-spain-b09cb956-2cb5-479e-ba3a-
bbfd4f7b68fc/#:~:text=The%20Tribunal%20decided%20that%20in,of%20the%20
provisions%20of%20the

• From 1945 – to 1972 [Early stages of Environmentalism, Scientific evidences of

environmental degradation & the involvement of the United Nations (and its agencies)
in setting the environmental agenda ]
o Many Conferences and Resolutions from the United Nations relating to
environmental protection
o The 1960’s: Early Stages of recognition of the Intrinsic Value of the Environment

▪ Environmental ethics: This discipline in philosophy that studies the moral

relationship of human beings to, and also the value and moral status of,
the environment and its non-human contents. This discipline covers: (1)
the challenge of environmental ethics to the anthropocentrism (i.e.,
human-centeredness) embedded in traditional western ethical thinking;
(2) the development of the discipline from the 1960s and 1970s; (3) the
connection of deep ecology, feminist environmental ethics, animism and
social ecology to politics; (4) the attempt to apply traditional ethical
theories, including consequentialism, deontology, and virtue ethics, to
support contemporary environmental concerns; (5) the broader concerns
of some thinkers with wilderness, the built environment and the politics
of poverty; and (6) the ethics of sustainability and climate change. For a
detailed reading visit https://plato.stanford.edu/entries/ethics-
environmental
o
▪ Silent Spring : Rachel Carson’s Silent Spring (1962) was a book about
Aerial spraying of synthetic pesticides (including DDT) to eradicate
mosquitoes from farmlands had silenced fish to birds to apple blossoms
to human children. Outcomes of this case
• Brought environmental concerns to the American public.
• US nationwide ban on DDT for agricultural uses

16
 • Creation of the U.S. Environmental Protection Agency which for
the first time introduced the concept of Environmental Impact
Assessment.

▪ Earth Rise: Earth Rising over the Moon ( 1968): A photograph of the Earth
and parts of the Moon's surface taken from lunar orbit by astronaut Bill
Anders in 1968, during the Apollo 8 mission. It is considered it to be one
of "the most influential environmental photograph ever taken”. It is
ststed that ‘Earth in its surrounding dark emptiness not only seemed
infinitely beautiful, it seemed infinitely fragile’… This “image crystallized
and cemented the sense of the planet's vulnerability” [Michael McCarthy,
“Earthrise: the image that changed our view of the planet” Independent
12 June 2012]

▪ Also read about other developments during this period @ Timeline of

history of environmentalism – Wikipedia
▪
o Increased Scientific Evidences of Environmental Degradation due anthropogenic
reasons and its irreversible impacts on the planet

o Towards the Stockholm Conference: In the context of these increased scientific

evidences Sweden first suggested to the United Nations Economic and Social
Council ECOSOC in 1968 the idea of having a UN conference to focus on human
interactions with the environment. ECOSOC passed resolution 1346 supporting
the idea. General Assembly Resolution 2398 in 1969 decided to convene a
conference in 1972 and mandated a set of reports from the UN secretary-

17
 general suggesting that the conference focus on "stimulating and providing
guidelines for action by national government and international organizations"
facing environmental issues …Read more @
https://en.wikipedia.org/wiki/United_Nations_Conference_on_the_Human_Envi
ronment

▪ Pre-1972,there were less than three-dozen multilateral agreements

concerning environment…. Where as by early 1990s there were
approximately nine hundred international legal instruments directly or
indirectly related with environmental issues at the multilateral level
……This may be called as ‘Stockholm Wave of Environmental
consciousness” ……Read Weiss, Edith Brown (1993): “International
Environmental Law: Contemporary Issues and the Emergence of a New
World Order,” Georgetown Law Journal, 81:675.
https://core.ac.uk/download/pdf/70375508.pdf

• From 1972 – to 1992- From Stockholm to Rio [Increased role of United Nations in the
context of increased scientific evidences of anthropogenic reasons of environmental
degradation; Debate between Economic development versus environmental protection
between the rich western countries/colonizers/industrialized countries (Global North)
and the poor/newly independent/developing/least developed countries (Global South)
o United Nations Conference on Human Environment, 1972 (Stockholm
Conference) :
▪ The Conference was convened with the objective to “create a basis for a
comprehensive consideration within the United Nations of the problems
of human environment” and to “focus the attention of governments and
public opinion in various countries on the importance of the problem.”
▪ Representatives from 113 countries, 19 inter-governmental agencies and
approximately 400 non-governmental organizations participated in the
Conference. The major absentees included the Communist countries such
as the Soviet Union, Cuba and other Eastern European countries with the
exceptions of Romania and Yugoslavia. For a detailed reading Garth,
Bryant G., "Declaration on the Human Environment" (1973). Articles by
Maurer Faculty. 1141.
https://www.repository.law.indiana.edu/facpub/1141

▪ Main Debate at Stockholm: Debate between Economic development

versus environmental protection between the rich western
countries/colonizers/industrialized countries (Global North) and the
poor/newly independent/developing/least developed countries (Global
South)

• GLOBAL NORTH argued that there is scientific evidence of

environmental degradation the reasons of which are

18
 anthropogenic (created by Human Beings). The degrading
environment is a COMMON CONCERN of all Countries & they
have COMMON RESPONSIBILITY to address the Common Concern.
This can be done by giving more importance to protecting the
environment when compared to the need of economic
development (which includes industrialization)

• GLOBAL SOUTH contested the above arguments on the following

logic: Due to HISTORICAL REASONS (Colonization +
Industrialization + Wars) the Global North has become the only
beneficiary of the world order and HAVE EARNED WEALTH
(WHICH RESULTED IN THE OVERALL DEVELOPMENT OF THOSE
COUNTRIES INCLUDING TECHNOLOGICAL ADVANCEMENTS & THE
LAW TO PROTECT THE SAME i.e. IPRs)
• Global North is also the primary reasons for the environmental
problems that were evident by then. The GLOBAL SOUTH has no
role in the degradation of environment.
• As a representative of Global South the then prime minister of
India, Smt Indira Gandhi delivered this speech June 14, 1972 at
plenary session of UN Conference on Human Environment . In this
speech she said to mean that Indian civilization and culture fully
understand the importance of protecting the planet and its
environment but India is a newly independent poor country and it
needs to provide basic necessities to its people. For the same
wealth has to generated/ industries need to established . Few
excerpts from her speech are given below :
• One cannot be truly human and civilised unless one looks
upon not only all fellow-men but all creation with the eyes
of a friend.
• It is said that in country after country, progress should
become synonymous with an assault on nature. We who
are a part of nature and dependent on her for very need,
speak constantly about “exploiting” nature.
• We are gathered here under the aegis of the United
Nations. We are supposed to belong to the same family
sharing common traits and impelled by the same basic
desires, yet we inhabit a divided world. How can it be
otherwise? There is still no recognition of the equality of
man or respect for him as an individual. In matters of
colour and race, religion and custom, society is governed
by prejudice. Tensions arise because of man’s
aggressiveness and notions of superiority.

19
• The riches and the labour of the colonized countries
played no small part in the industrialization and prosperity
of the West. Now, as we struggle to create a better life for
our people, it is in vastly different circumstances, for
obviously in today’s eagle-eyed watchfulness we cannot
indulge in such practices even for a worthwhile purpose.
We are bound by our own ideals. We owe allegiance to the
principles of the rights of workers and the norms
enshrined in the charters of international organizations.
Above all we are answerable to the millions of politically
awakened citizens in our countries.
• We do not wish to impoverish the environment any
further and yet we cannot for a moment forget the grim
poverty of large numbers of people. Are not poverty and
need the greatest polluters? For instance, unless we are in
a position to provide employment and purchasing power
for the daily necessities of the tribal people and those who
live in or around our jungles, we cannot prevent them
from combing the forest for food and livelihood; from
poaching and from despoiling the vegetation. When they
themselves feel deprived, how can we urge the
preservation of animals?
• How can we speak to those who live in villages and in
slums about keeping the oceans, the rivers and the air
clean when their own lives are contaminated at the
source? The environment cannot be improved in
conditions of poverty. Nor can poverty be eradicated
without the use of science and technology. Must there be
conflict between technology and a truly better world or
between enlightenment of the spirit and a higher standard
of living?
• It is an over — simplification to blame all the world’s
problems on increasing population. Countries with but a
small fraction of the world population consume the bulk of
the world’s production of minerals, fossil fuels and so on.
Thus we see that when it comes to the depletion of
natural resources and environmental pollution, the
increase of one inhabitant in an affluent country, at his
level of living, is equivalent to an increase of many Asian,
Africans or Latin Americans at their current material levels
of living.
• The environmental problems of developing countries are
not the side effects of excessive industrialization but
reflect the inadequacy of development. The rich countries
20
 may look upon development as the cause of
environmental destruction, but to us it is one of the
primary means of improving the environment for living, or
providing food, water, sanitation and shelter; of making
the deserts green and the mountains habitable.
• For the full text :
https://www.downtoearth.org.in/news/environment/look
ing-back-at-stockholm-1972-what-indira-gandhi-said-half-
a-century-ago-on-man-environment-
83060#:~:text=Life%20is%20one%20and%20the,parts%20
of%20a%20vicious%20circle

• After negotiations there was a balance between these opposing

viewpoints and as a result the following three NON BINDING
documents were adopted:

• Resolution on Institutional and Financial Arrangements:

It proposed that action be taken by the UN General
Assembly to establish four institutional arrangements, viz.
an intergovernmental Governing Council for
Environmental Programs; An environmental secretariat; an
environmental fund to provide financing for
environmental programs and also an inter-agency
environmental coordinating board to ensure cooperation
and coordination among all bodies concerned in the
implementation of UN environmental programs.

• Declaration on the UN Conference on the Human

Environment (containing 26 Principles)---- THE MOST
IMPORTANT CONTRIBUTION ( MUST READ ). Full text can
be accessed from
https://wedocs.unep.org/bitstream/handle/20.500.11822/
29567/ELGP1StockD.pdf

• Action Plan (containing 109 recommendations): The 109

Recommendations were generally accepted by consensus
and it reflected six main subject areas. (1) Planning and
Management of Human Settlements for Environmental
Quality (2) Environmental Aspects of Natural Resources
Management (3) Identification and Control of Pollutants
and Nuisances of Broad International Significance (4)
Educational, Informational, Social and Cultural Aspects of
Environmental Issues (5) Development and Environment;
21
 and (6) International Organisational Implications of Action
Proposals

o Report of the World Commission on Environment and Development ‘Our

Common Future’ aka Brundtland Report (1987)
▪ The UN established the Brundtland Commission is to look at to ways to
unite countries to pursue sustainable development together & is known
after the Chairperson of the Commission, the former Prime Minister of
Norway, Mrs. Gro Harlem Brundtland. In the year 1987 the Commission
submitted its report which is titled as ‘Our Common Future’.
▪ The reports's core concepts were, in the words of its Chairperson "that
development must be sustainable, and the environment and world
economy are totally, permanently intertwined." She went on to assert
that these concepts "transcend nationality, culture, ideology, and race."
She summarized by repeating the report's urgent warning: "Present
trends cannot continue. They must be reversed."

▪
▪ The Commission defined Sustainable Development as “Development
which meets the needs of the present without compromising the ability
of future generations to meet their own needs”
▪ Read more@
https://www.encyclopedia.com/environment/encyclopedias-almanacs-
transcripts-and-maps/our-common-future-brundtland-report

22
• From1992 – to present [More attention to Ecocentricism with attempts to balance the
three pillars of sustainable development viz. (a) Environmental protection; (b) Economic
development; (c) Social justice . This period also saw increased attempts to recognize
the intrinsic value of biotic & abiotic elements of the planet ]

o The United Nations Conference on Environment and Development:

(hereinafter referred to as the UNCED or Rio Conference), 1992, is also known as
the Rio Summit or the Rio Conference or the Earth Summit.
• Representatives of 172 states, more than 2000 representatives
from non-governmental organizations attended the Summit.
• Similar to the Stockholm Conference, the UNCED was also
concerned with the balance between the environmental
protection and the economic development. Since the
environmental concerns have been marginal in the broader
scheme of the international and national legal and institutional
arrangements, the main idea was to influence and create
behaviour to integrate environmental protection into the
economical and the developmental activities. Commented [h2]: Principle of Integration which requires
environmental protection be integrated into all policy areas in line
• The results of the Rio Conference are: with the objectives of sustainable development
• Rio Declaration
• Agenda 21
• Forest Principles
• UNFCCC
• CBD

▪ Rio Declaration on Environment and Development (MUST READ)

consists of 27 principles & represents a series of compromises between
the developed and the developing countries and also a balance between
the objectives of the environmental protection and the economic
development.
▪ The Rio Declaration defines sustainable development in 27 principles.
Using these principles in an effective combination provides an important
guideline on the road to achieving a more sustainable world.
▪ Unfortunately the Rio Declaration was not opened for negotiation at the
UNCED but it was merely endorsed. This raises an important question of
fairness in the making of international law.

23
▪ These principles are NON-BINDING in nature . But some of these 27
principles had the status of Customary Principle of International law OR
later emerged as customary principles.

• Principle 1: Human beings are at the centre of concerns for

sustainable development. They are entitled to a healthy and Commented [h3]: Is it not anthropocentricism? Or does it move
away from Anthropocentricism when it says that human beings are
productive life in harmony with nature. entitled to a healthy and productive life in HARMONY with nature?
• Principle 2 : States have, in accordance with the Charter of the
United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their
own environmental and developmental policies, and the Commented [h4]: PSNR / Principle of Prevention/ Principle of
Good Neighborliness
responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States
or of areas beyond the limits of national jurisdiction. Commented [h5]: No Harm Principle

• Principle 3: The right to development must be fulfilled so as to

equitably meet developmental and environmental needs of
present and future generations. Commented [h6]: Intergenerational equity

• Principle 4: In order to achieve sustainable development,

environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from
it. Commented [h7]: Principle of Integration

• Principle 5: All States and all people shall cooperate in the Commented [h8]: Principle of Cooperation , Collaboration and
Consultation
essential task of eradicating poverty as an indispensable
Commented [h9]: Poverty eradication is an aspect of Social
requirement for sustainable development, in order to decrease Justice
the disparities in standards of living and better meet the needs of
the majority of the people of the world.
• Principle 6: The special situation and needs of developing
countries, particularly the least developed and those most
environmentally vulnerable, shall be given special priority. Commented [h10]: CBDR
International actions in the field of environment and development
should also address the interests and needs of all countries.
• Principle 7: States shall cooperate in a spirit of global partnership Commented [h11]: Cooperation, Collaboration & Consultation

to conserve, protect and restore the health and integrity of the

Earth's ecosystem. In view of the different contributions to global
environmental degradation, States have common but
differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international
pursuit of sustainable development in view of the pressures their
societies place on the global environment and of the technologies
and financial resources they command. Commented [h12]: CBDR

• Principle 8: To achieve sustainable development and a higher

quality of life for all people, States should reduce and eliminate

24
 unsustainable patterns of production and consumption and
promote appropriate demographic policies.
• Principle 9: States should cooperate to strengthen endogenous
capacity-building for sustainable development by improving
scientific understanding through exchanges of scientific and
technological knowledge, and by enhancing the development,
adaptation, diffusion and transfer of technologies, including new
and innovative technologies.
• Principle 10: Environmental issues are best handled with the
participation of all concerned citizens, at the relevant level. At the
national level, each individual shall have appropriate access to
information concerning the environment that is held by public
authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate
in decision-making processes. States shall facilitate and encourage
public awareness and participation by making information widely
available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided. Commented [h13]: Principle of Environmental Democracy &
THREE Procedural Environmental Rights ((a) Right to Public
• Principle 11: States shall enact effective environmental Participation in Environmental Decision Making / (b) Right to Access
legislation. Environmental standards, management objectives and Information (particularly in the environmental context / (c) The
Right to Access Justice )
priorities should reflect the environmental and developmental
context to which they apply. Standards applied by some countries
may be inappropriate and of unwarranted economic and social
cost to other countries, in particular developing countries.
• Principle 12: States should cooperate to promote a supportive
and open international economic system that would lead to
economic growth and sustainable development in all countries, to
better address the problems of environmental degradation. Trade
policy measures for environmental purposes should not
constitute a means of arbitrary or unjustifiable discrimination or a
disguised restriction on international trade. Unilateral actions to Commented [h14]: Trade and Environment relationship
deal with environmental challenges outside the jurisdiction of the
importing country should be avoided. Environmental measures
addressing transboundary or global environmental problems
should, as far as possible, be based on an international consensus.
• Principle 13: States shall develop national law regarding liability
and compensation for the victims of pollution and other
environmental damage. States shall also cooperate in an
expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse
effects of environmental damage caused by activities within their
jurisdiction or control to areas beyond their jurisdiction. Commented [h15]: Liability and Compensation for
Environmental Damage

25
• Principle 14 : States should effectively cooperate to discourage or
prevent the relocation and transfer to other States of any
activities and substances that cause severe environmental
degradation or are found to be harmful to human health.
• Principle 15: In order to protect the environment, the
precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to
prevent environmental degradation. Commented [h16]: Precautionary Approach

• Principle 16: 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. Commented [h17]: Polluter Pays Principle

• Principle 17: Environmental impact assessment, as a national

instrument, shall be undertaken for proposed activities that are
likely to have a significant adverse impact on the environment and
are subject to a decision of a competent national authority. Commented [h18]: Environmental Impact Assessment

• Principle 18: States shall immediately notify other States of any

natural disasters or other emergencies that are likely to produce
sudden harmful effects on the environment of those States. Every
effort shall be made by the international community to help
States so afflicted. Commented [h19]: Cooperation, NOTIFICATION and
Consultation
• Principle 19 : States shall provide prior and timely notification and
relevant information to potentially affected States on activities
that may have a significant adverse transboundary environmental
effect and shall consult with those States at an early stage and in
good faith. Commented [h20]: Cooperation, NOTIFICATION and
Consultation
• Principle 20 : Women have a vital role in environmental
management and development. Their full participation is
therefore essential to achieve sustainable development. Commented [h21]: Gender and Environment

• Principle 21: The creativity, ideals and courage of the youth of the
world should be mobilized to forge a global partnership in order
to achieve sustainable development and ensure a better future
for all. Commented [h22]: Youth and Environment

• Principle 22: Indigenous people and their communities and other

local communities have a vital role in environmental management
and development because of their knowledge and traditional
practices. States should recognize and duly support their identity,
culture and interests and enable their effective participation in
the achievement of sustainable development. Commented [h23]: Indigenous people and Environment

26
 • Principle 23: The environment and natural resources of people
under oppression, domination and occupation shall be protected. Commented [h24]: Against Colonization/Right to Self
Determination/against Racial Discrimination / Environmental Justice
• Principle 24: Warfare is inherently destructive of sustainable
development. States shall therefore respect international law
providing protection for the environment in times of armed
conflict and cooperate in its further development, as necessary. Commented [h25]: Wars and Environmental Degradation

• Principle 25: Peace, development and environmental protection

are interdependent and indivisible.
• Principle 26: States shall resolve all their environmental disputes
peacefully and by appropriate means in accordance with the
Charter of the United Nations.
Commented [h26]: Peace is integral to development and
Environmental Protection
Commented [h27]: Peaceful Resolution of the Disputes

• Principle 27: States and people shall cooperate in good faith and
in a spirit of partnership in the fulfilment of the principles
embodied in this Declaration and in the further development of
international law in the field of sustainable development. Commented [h28]: Cooperation, NOTIFICATION and
Consultation

Questions:

1. Did the UNCED move from the Anthropocentric Approach to Eco-Centric Approach?

▪ the Agenda 21: is a non-binding action plan of the United Nations with
the objective of achieving sustainable development by 2000 (AGENDA
FOR ACHIEVING SUSTAINABLE DEVELOPMENT BY 21st CENTUARY). This is
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. This was designed to integrate environment
with developmental concerns for ‘the fulfillment of basic needs,
improved living standards for all, better protected and managed
ecosystemsand a safer and more prosperous future. Agenda 21 has 40 Commented [h29]: Principle of Integration
chapters in four sections.
• Section I: Social and Economic Dimensions: directed toward
combating poverty, especially in developing countries, changing
consumption patterns, promoting health, achieving a more
sustainable population, and sustainable settlement in decision
making.
• Section II: Conservation and Management of Resources for
Development includes atmospheric protection,
combating deforestation, protecting fragile environments,
conservation of biological diversity (biodiversity), control of

27
 pollution and the management of biotechnology, and radioactive
wastes.
• Section III: Strengthening the Role of Major Groups includes the
roles of children and youth, women, NGOs, local authorities,
business and industry, and workers; and strengthening the role
of indigenous peoples, their communities, and farmers.
• Section IV: Means of Implementation includes
science, technology transfer, education international institutions,
and financial mechanisms
Scholar Phillippe Sands asks “ What contribution has Agenda 21 made to
international law?” and he answers “It recommended the creation of a
Commission on Sustainable Development, and a new coordinating mechanisms
to achieve the objectives”. The Commission on Sustainable Development which
was established as a result was the implementing body of Agenda 21.

▪ Forest Principles (principles for a global consensus on the management,

conservation and sustainable development of all types of forests): are
nonbinding in nature and state that the forests, with their complex
ecology, are essential to sustainable development and the maintenance
of all forms of life. Forests provide wood, food, and medicine and contain
a biological diversity as yet not fully uncovered. They also act as
reservoirs (sinks) for carbon dioxide, a greenhouse gas released into the
atmosphere by human processes, which may be contributing towards
global warming. As well as the scientific benefits of forests, they also
provide a home to wildlife and fulfill our cultural and spiritual needs.
These principles assert the right of nations to profit from their own forest
resources, but recommend that this should occur within a framework of
forest protection, management and conservation. Main points includes: Commented [h30]: PSNR and No Harm?

• All nations should take part in “the greening of the world”

through planting and conserving forests.
• Forests should be managed in order to meet the social,
economic, ecological, cultural and spiritual needs of present
and future generations.
• Unique examples of forest should be protected, for example
ancient forests and forests with cultural, historical, spiritual
and religious importance.
• Pollutants that harm forests should be controlled.
• Forestry plans should consider the non-economic values of
forests and the environmental consequences of their
management. Forest degradation should be avoided.

28
▪ UN Convention on Biological Diversity : Biodiversity is all the different
kinds of life in one particular geographical area/country/planet—includes
the variety of animals, plants, fungi, and microorganisms like bacteria
that make up our natural world. Each of these species and organisms
work together in ecosystems, like an intricate web, to maintain balance
and support life. Biodiversity supports everything in nature that humans
need to survive: food, clean water, medicine, and shelter. For the same
reason, there is no doubt that these resources are to be protected, but as
humans put increasing pressure on the planet, for developmental
purposes, using and consuming more resources than ever before, there is
a risk of upsetting the balance of ecosystems and losing biodiversity
which is a ‘common concern of humankind’. To prevent this can there is a
total prohibition of interference with such resources? That seems to be
extremely eco-centric and hence not sustainable. So the developmental
needs of the country needs to be optimally balanced with the protection
of these bio-resources.
▪ There is one more issue here. Most of the knowledge (such as medicinal
values) of these bio-resources is with the indigenous/tribal/forest
dwelling/rural communities which are not recorded/published anywhere.
Rather they pass on these knowledge from generation to generation
through words. This is what is called as Traditional Knowledge. For the
same reason, these communities are important stakeholders while
balancing the developmental and conservation strategies of the bio
resources. To balance these three interests the Convention on Biological
Diversity (CBD) is signed and ratified by the international
community.Read more @
https://www.cbd.int/convention/guide/?id=web
▪ There are three purposes of CBD:
• the conservation of biological diversity
• the sustainable use of its components
• the fair and equitable sharing of the benefits arising out of the
utilization of genetic resources. Commented [h31]: Applying the principle of Sustainable
Development specifically iin the area of bio-diversity
▪ The Convention was opened for signature at the Earth Summit in Rio de
Janeiro on 5 June 1992 and entered into force on 29 December 1993. It
has two supplementary agreements, viz:
• The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity: The international treaty governing the
movements of living modified organisms (LMOs) resulting from
modern biotechnology from one country to another. It was

29
 adopted on 29 January 2000 as a supplementary agreement to
the CBD and entered into force on 11 September 2003.Read more
@ https://bch.cbd.int/protocol/background

• The Nagoya Protocol on Access to Genetic Resources and the

Fair and Equitable Sharing of Benefits Arising from their
Utilization (ABS) to the Convention on Biological Diversity is
another supplementary agreement to the CBD. It provides a
transparent legal framework for the effective implementation of
one of the three objectives of the CBD: the fair and equitable
sharing of benefits arising out of the utilization of genetic
resources. The Nagoya Protocol was adopted on 29 October 2010
in Nagoya, Japan, and entered into force on 12 October 2014.
Read more @ https://www.cbd.int/abs/about/default.shtml/

▪ In furtherance of ratifying CBD India enacted the Biological Diversity Act

in the year 2002 with the same objectives as CBD (For easy reference see
https://prepp.in/news/e-492-biological-diversity-act-2002-environment-
notes ). However the question is whether the objectives of Bio Diversity
Act has been realised. For the same see a case study:
▪ Three scientists were on a study trip through the dense forests of
western ghats. They were accompanied by three people from Kani tribe.
While the scientists were easily tired despite having high protein food
and drinks, the tribal men was with not tired. The scientists noticed that
they had been eating the fruits and leaves of few plants while they were
walking…For the interesting story read @
https://www.thehindu.com/news/national/A-benefit-sharing-model-
that-did-not-yield-desired-results/article12561312.ece

Commented [h32]: Climate Change is the increase in average

o The UN Framework Convention on Climate Change (UNFCCC), 1992 : UN to
address the problem of climate change. Parties to the Convention continue to
meet regularly to address the climate change threat. It is an UN Treaty to combat
the dangerous anthropocentric interference with the climate system , by
stabilizing greenhouse gas concentrations in the atmosphere. They have also
negotiated a protocol to the Convention:
▪ The Kyoto Protocol, 1997 : (Signed in December 1997 in Kyoto, Japan)
This was the first implementation effort under UNFCCC. It obliges
industrialized countries and countries of the former Soviet bloc (known
collectively as “Annex I Parties”) to cut their emissions of greenhouse
gases by an average of about 5% for the period 2008-2012 compared
with 1990 levels. However, the Protocol only enters into force following
ratification by 55 Parties to the UNFCCC, and if these 55 countries
included a sufficient number of Annex I Parties that at least 55% of that
global temperature and its impact on the Earth’s Climate System
such as melting of glaciers, sea level rise, unpredictable
rainfalls/snowfalls/droughts etc. This will have consequence on all
aspects of human and animal life on this planet.
The increase can be due to natural reasons and also anthropogenic
reasons. While the natural reasons will be balanced by the sinking
capacity of the planet, anthropogenic interference is beyond this
capability of the planet.
The current international and national efforts are to reduce this
anthropogenic reasons and to arrest the average global temperature
increase to 2% of the average temperature of the year 1990.
Commented [h33]: Principle of CBDR . There is a common
responsibility to fight the Common Concern of Climate Change.
Kyoto Protocol divides the countries in Annex 1 countries-
developed countries- and Annex 2 countries –developing countries.
Annex 1 countries have Differentiated responsibilities to cut their
emission, in transferring Green Technology to developing countries,
and also for financing the climate change efforts of developing
countries

30
 group’s total carbon dioxide emissions for 1990 were represented.
Although the world’s largest emitter of greenhouse gases, the United
States, rejected the Kyoto Treaty in 2001 after the election of President
George W. Bush, a majority of other Annex I Parties, including Canada,
Japan, and the countries of the European Union ratified the treaty. In
November 2004, the Russian Federation also ratified the Protocol, thus
reaching the 55% threshold. The Protocol finally entered into force as a
legally-binding document on 16 February 2005. By December 2007, the
Protocol had been ratified by 177 countries, including Annex I parties
representing 63.7% of Annex I greenhouse gas emissions in 1990. [First
commitment period of the Protocol ran from February 2005 to December
2012 & the second Commitment period ran from Dec 2012 to December
2020. After this date the Protocol expired). Read more @
https://en.wikipedia.org/wiki/Kyoto_Protocol

▪ Paris Climate Agreement, 2015: Also called as Paris Climate Accords, is

an international treaty on climate change, adopted in 2015 at Paris. The
Agreement covers climate change mitigation, adaptation, and finance.
The United States under Donald Trump withdrew from the agreement in
2020, but rejoined in 2021 under Joe Biden’s Presidentship. Its long-term
temperature goal is to keep the rise in mean global temperature to well
below 2 °C above pre-industrial levels, and preferably limit the increase
to 1.5 °C (2.7 °F), recognizing that this would substantially reduce
the effects of climate change. Emissions should be reduced as soon as
possible and reach net-zero by the middle of the 21st century. To stay
below 1.5 °C of global warming, emissions need to be cut by roughly 50%
by 2030. It aims to help countries adapt to climate change effects, and
mobilize enough finance. Under the agreement, each country must
determine, plan, and regularly report on its contributions (known as
Nationally Determined Contributions –NDC ). NDC do not force a country Commented [h34]: When the countries had signed and adopted
the Paris Agreement in 2015, the countries had submitted their own
to set specific emissions targets, but each target should go beyond INTENDED plans to address climate change, known as INTENDED
previous targets. In contrast to the 1997 Kyoto Protocol, the distinction NATIONALLY DETERMINED CONTRIBUTIONS (INDC). When
these countries had submitted the instrument of ratification,
between developed and developing countries is blurred, so that the latter acceptance, approval or accession to the Paris Agreement this INDC
is converted to a NATIONALLY DETERMINED CONTRIBUTION
also have to submit plans for emission reductions. Read more @ (NDC).
https://en.wikipedia.org/wiki/Paris_Agreement

Millennium Development Goals (MDGs)

• Includes 08 international development goals to be achieved in 15 years (2000-2015)
which was established at the UN Millennium Summit, 2000. The Goals are:
1. To eradicate extreme poverty and hunger
2. To achieve universal primary education
3. To promote gender equality and empower women
4. To reduce child mortality

31
 5. To improve maternal health
6. To combat HIV/AIDS, malaria, and other diseases
7. To ensure environmental sustainability
8. To develop a global partnership for development
The success of MDGs is doubtful. Read more @
https://en.wikipedia.org/wiki/Millennium_Development_Goals

Johannesburg Summit 2002

• The World Summit on Sustainable Development 2002 OR World Summit on Sustainable
Development (WSSD) OR Earth Summit 2002, took place in Johannesburg, South Africa,
from 26 August to 4 September 2002 to discuss realisation of Sustainable Development.
Since this was convened 10 years after the Earth Summit 1992 (Rio Conference 1992) it
is informally called as Rio+10. The main contribution of WSSD has been the
Johannesburg Declaration on Sustainable Development. This Declaration reiterates most
of the proposals from the Rio Declaration on Environment and Development and
Agenda 21, international agreements from Earth Summit 1992. The Johannesburg
Declaration emphasises on Multilateralism as a method of achieving these goals. The
Three pillars of Sustainable Development that were being discussed from 1990s
onwards got firmly reiterated after this Summit.
▪ Economic Development
▪ Environmental Protection
▪ Social Justice

Rio +20
The United Nations Conference on Sustainable Development (UNCSD) OR Rio 2012
OR Rio+20 OR Earth Summit 2012 was the third international conference on sustainable
development aimed at reconciling the economic, social and environmental goals of the global
community. The conference had three objectives:
• to secure renewed political commitment for sustainable development
• to assess the progress and implementation gaps in meeting previous commitments
• to address new and emerging challenges.
The main contribution of the 2012 Conference was a non-binding document called as “The
Future We Want" through which nations:
32
 • Largely reaffirms previous action plans like Agenda 21.
• Called for the development of Sustainable Development Goals (SDGs), a set of
measurable targets aimed at promoting sustainable development globally. Later SDGs
were adopted in 2015.
• Aim at strengthening the UN Environment Programme (UNEP) as a "leading global
environmental authority", through universal membership, increasing its financial
resources and strengthening its engagement in key UN coordination bodies.
• Agreed to explore alternatives to GDP as a measure of wealth that take environmental
and social factors into account in an effort to assess and pay for 'environmental services'
provided by nature, such as carbon sequestration and habitat protection.
• Recognized the need of "fundamental changes in the way societies consume and
produce..” for achieving global sustainable development. Some of the representatives
suggested a shift of taxes so workers pay less and polluters and landfill operators pay
more.
• Calls the need to return ocean stocks to sustainable levels "urgent" and calls on
countries to develop and implement science-based management plans.
• Reaffirmed commitments to phase out fossil fuel subsidies.

AGENDA 2030 – Sustainable Development Goals (2015-2030)

• The Sustainable Development Goals (SDGs) formulated in 2015 by the UNGA, are 17
interlinked objectives designed to serve as a "shared blueprint for peace and prosperity
for people and the planet now and into the future". The SDGs emphasize the
interconnected environmental, social and economic aspects of sustainable
development. The SDGs follows the MDGs and are goals to be achieved during 2015-
2030. The UNGA Resolution which adopted the SDGs is commonly called as Agenda
2030. There are 17 Goals and 169 Targets for the SDGs.

33
Read more @ https://sdgs.un.org/goals
• Four recurring themes of Sustainable Development (Philippe Sands, Principles of
International Environmental Law)
o The need to preserve natural resources for the benefit of future generations (the
principle of intergenerational equity)
o The aim of exploiting natural resources in a manner which is ‘sustainable’, or
‘prudent’, or ‘rational’, or ‘wise’, or ‘appropriate’(the principle of sustainable use)
o The equitable’ use of natural resources , which implies that use by one state
must take account of the needs of other states (the principle of equitable use, or
intragenerational equity)
o The need to ensure that environmental considerations are integrated into
economic and other development plans, programmes and projects, and that
development needs are taken into account in applying environmental objectives
(the principle of integration)

• Three Universal Values/Universal Principles of SDGs: The SDGs envision for sustainable
development grounded in international human rights standards, putting equality and
non-discrimination at the centre of its efforts and encompassing not only economic and
social rights but also civil, political, and cultural rights, and the right to development.
Together, these imperatives are condensed in three principles namely:
o Principle One: Human Rights-Based Approach (HRBA): The human rights-based
approach (HRBA) is a conceptual framework for the process of human
development that is normatively based on international human rights standards
and operationally directed to promoting and protecting human rights. It seeks to

34
 analyse inequalities which lie at the heart of development problems and redress
discriminatory practices and unjust distributions of power that impede
development progress and often result in groups of people being left behind.
Read more@ https://unsdg.un.org/2030-agenda/universal-values/human-rights-
based-approach
o Principle 2-Leave no one behind (LNOB) represents the unequivocal
commitment of all UN Member States to eradicate poverty in all its forms, end
discrimination and exclusion, and reduce the inequalities and vulnerabilities that
leave people behind and undermine the potential of individuals and of humanity
as a whole. LNOB not only entails reaching the poorest of the poor, but requires
combating discrimination and rising inequalities within and amongst countries,
and their root causes. A major cause of people being left behind is persistent
forms of discrimination, including gender discrimination, which leaves
individuals, families and whole communities marginalized, and excluded. It is
grounded in the UN’s normative standards that are foundational principles of the
Charter of the United Nations, international human rights law and national legal
systems across the world. Read more @ https://unsdg.un.org/2030-
agenda/universal-values/leave-no-one-behind
o Principle Three: Gender Equality and Women's Empowerment (GEWE) is an
effort to shape policy decisions that endorse equitable distribution of resources
among men and women, girls and boys. It is a way of looking at how social
norms and power structures impact the lives and opportunities available to
different groups of men and women. Understanding that men and women, boys
and girls, experience poverty differently and face different barriers in accessing
services, economic resources and political opportunities helps to target
interventions. However, gender roles and relationships are not fixed; they evolve
based on circumstance. To advance the SDG targets and achieve the 2030
Agenda, Gender inequality must be brought to the forefront of programmes and
analysis. Faster progress across all the SDGs will largely depend on the thorough
integration of gender dimensions in public policies. Read more @
https://unsdg.un.org/2030-agenda/universal-values/gender-equality-and-
womens-empowerment

Stockholm+50: a healthy planet for the prosperity of all – our responsibility, our opportunity
(Stockholm +50)
• Stockholm+50 took place five decades after the 1972 Stockholm Conference. which
provided leaders with an opportunity to draw on 50 years of multilateral environmental
action to achieve the bold and urgent action needed to secure a better future on a
healthy planet. The Vision of the Conference was “A healthy planet for the prosperity of
all – our responsibility, our opportunity”. Read more @
https://www.stockholm50.global

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36
PRINCIPLES OF INTERNATIONAL AND NATIONAL ENVIRONMENTAL LAW

Image source:
https://edisciplinas.usp.br/pluginfile.php/520713/mod_resource/content/1/Cap.3_Internation
al%20Environmental%20Law%20%281%29.pdf

• IEL PRINCIPLES and their recognition in Indian laws

1. PSNR: summarized earlier in this document

2. No Harm Principle: Summarized earlier in this document

3. Prevention
a. Principle 21 of Stockholm Declaration: States have . . . the sovereign
right to exploit their own resources . . . and the responsibility to ensure Commented [h35]: PSNR
that activities within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of national
jurisdiction Commented [h36]: No Harm/ Prevention
b. Principle 2 of Rio Declaration: States have, in accordance with the
Charter of the United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to Commented [h37]: PSNR
ensure that activities within their jurisdiction or control do not cause

37
 damage to the environment of other States or of areas beyond the limits
of national jurisdiction. Commented [h38]: No Harm/ Prevention
c. Prevention essentially means that when it is scientifically proven that a
human action (or collectively the state action or corporate action) is
harmful for the environment and society, there is a duty to prevent that
harm. However prevention does not mean a total ban on the human
action. The emphasize is on Preventing the Harm by using appropriate
Environmentally Sound Technology (ESTs)/Green Technology. A total ban
of the human action maybe done only if this is not possible.
d. In India this principle has been recognized by all environmental statutes
such as
i. Water (Prevention and Control of Pollution) Act, 1974
ii. Air (Prevention and Control of Pollution) Act, 1981
iii. Environment Protection Act, 1986 enacted for ‘prevention of
hazards to human beings, other living creatures, plants and
property’ among other things
iv. And other statutes and Rules

4. Precautionary Principle /Approach

a. Even if there is no SCIENTIFIC CERTAINITY about the harmful nature of a
human action (i.e. even if it scientifically not proven that a human action
is harmful), a possible harm should be anticipated & all possible
measures should be taken to prevent that harm.
b. The underlying idea is that the lack of scientific certainty about the actual
or potential effects of an activity must not prevent States from taking
appropriate measures to prevent a possible harm.
c. Principle 15 of Rio Declaration: “In order to protect the environment,
the precautionary approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental
degradation.”
d. Article 3.3 of UNFCCC: “…The Parties should take precautionary
measures to anticipate, prevent or minimize the causes of climate change
and mitigate its adverse effects. Where there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as
a reason for postponing such measures.”
e. However the question is whether Precaution is a Principle OR just an
Approach? The answer depends on two versions of Precaution:
i. Stronger versions and Softer Versions of Precaution where the
potentially risky activity is banned until the proponent of the
activity demonstrates that it poses no (or acceptable) risk. In the

38
 stronger version, the Burden of proof shifts to the proponent of
the activity to prove that the activity is benign and not harmful. In
the softer version the activity is not totally banned even if there is
no scientific certainity but a harm should be anticipated & all
possible measures should be taken to prevent that harm.
However this strong version of Precaution is not recognized by
International Law and are found in instruments that are
aspirational, academic literature etc. Position of PP in IL is
explicitly stated in Pulp Mills Case (2010) where the ICJ stated
“while a precautionary approach may be relevant in the
interpretation and application of the treaty agreed between both
states, it does not follow that it operates as a reversal of the
burden of proof.”
ii. In India, the Supreme Court of India in Vellore Citizen Forum v
Union of India [1996 5 SCC 647] identified three elements of PP
1. Environmental measures by the state must anticipate and
prevent and attack the causes of environmental
degradation (Principle of Prevention)
2. where there are threats of serious and irreversible
damage, lack of scientific certainty should not be used a
reason for postponing measures to prevent environmental
degradation”
3. Shifts the burden of proof to the proponent
iii. Thus the Supreme Court accepted the Stronger version of PP, by
citing International law. However even in 2010 (pulp mills case)
the stronger version of PP is not recognized by Treaty law or by
Customary International law.
iv. Read also
1. AP Pollution Control Baord v MV Nayadu (1999) 2 SCC 718-
A lengthy analysis is made by the Court on the
development of this Principle
2. TN Godvarman Thirumulpad v Union of India (2006) 1 SCC
1 the SC extended the Principle to the case conversion of
forest land for non-forest purposes
3. MC Mehta v UoI- (Taj Trapezium Case) 1987 AIR 1086:
Onus of proof is on the industry around Taj Mahal that
they are not polluting and causing the acid rain causing
discoloring of white marble of Taj Mahal
4. And other cases

5. Co-operation, notification, consultation

39
 a. The existence of a general duty of co-operation is well established in
international law. This duty is formulated in Principle 4 of General
Assembly Resolution 2625 (XXV) on the ‘Principles of International Law
Concerning Friendly Relations and Cooperation among States, 1970’
which states that “States have the duty to co-operate with one another,
irrespective of the differences in their political, economic and social
systems, in the various spheres of international relations, in order to
maintain international peace and security and to promote international
economic stability and progress, the general welfare of nations and
international co-operation free from discrimination based on such
differences. “.
b. The aspects of Notification and Consultation flows from the duty to
Cooperate. Before initiating any activity which might possibly cause harm
to the other countries, there is a duty to Notify them and to Consult with
them.
c. Duty to co- operate in ‘a transboundary context covers some minimal
requirements of co-operation through norms such as:
i. principle of reasonable and equitable use of shared resources
ii. duty of notification and consultation with States potentially
affected by an activity/event having consequences on the
environment
iii. obligation to conduct an environmental impact assessment
iv. principle of prior informed consent

6. Prior Informed Consent (PIC) /Free and Prior Informed Consent (FPIC). This has
multiple relevance in law. Some of the relevant interpretations in International
environmental laws are:
a. Interpretation 1- FPIC
i. It refers to a duty to consult indigenous peoples who may be
affected by a project. For example ILO Convention 169 on
Indigenous and Tribal Peoples provides for an obligation to
consult with and seek the prior informed consent of indigenous
peoples as a condition for their exceptional ‘displacement’ or
‘relocation’ by the government of a State.
ii. Similarly UNGA Resolution 61/295 titled ‘United Nations
Declaration on the Rights of Indigenous Peoples’, provides in its
Article 10 that ‘Indigenous peoples shall not be forcibly removed
from their lands’ and that ‘no relocation shall take place without
the free, prior and informed consent of the indigenous peoples
concerned’.

40
 iii. CBD article 8(j) requires the ‘approval and involvement’ of
indigenous peoples as a condition for the utilization of their
traditional knowledge.
iv. Read more@ https://www.fao.org/3/i6190e/i6190e.pdf

b. Interpretation 2 - PIC
i. It also refers to the obligation assumed by a State not to export
certain wastes, substances or products to another State unless
the latter has given its prior informed consent. The objective of
this requirement is to ensure that such wastes, substances or
products are sent only to States who are willing to accept them
and have the technical capacity to manage them.
ii. In general, there are two ways to implement the requirement of
PIC , viz:
1. a general PIC procedure (by substance)
2. a specific PIC procedure (by shipment)
iii. The first approach can be illustrated by reference to the 1998
Rotterdam Convention on the Prior Informed Consent Procedure
which establishes a system of product identification and
information exchange.
iv. Article 6, Basel Convention on Hazardous Wastes 1989 establishes
a system whereby the competent authority of the exporting State
must notify its counterpart in the importing State (and any transit
States) of any planned shipment of hazardous wastes or other
waste, or require private operators do so. Subsequently, the
export State may authorize the trans- boundary movement of
wastes if it has received the written consent of the importing
State.

7. Environmental Impact Assessment (EIA) – the EIA procedure in India will be

discussed later
a. Following the EIA requirement in US National Environmental Policy Act,
1969, it was recognized in Kuwait Regional Convention for Cooperation
on the Protection of the Marine Environment from Pollution, 1978; Apia
Convention on the Conservation of Nature in the South Pacific, 1976;
Kuala Lumpur (ASEAN) Cooperation Plan on Transboundary Haze
Pollution, 1985. Thereafter it was also incorporated into Principle 17 of
the Rio Declaration, which provides that:
i. “Environmental impact assessment, as a national instrument, shall
be under- taken for proposed activities that are likely to have a
significant adverse impact on the environment and are subject to
a decision of a competent national authority.”

41
b. The scope of the obligation under International Law to conduct an EIA
depends on factors such as:
i. the formal source from which the obligation derives (treaty,
custom, general principles of law)
ii. the spatial scope of the requirement (national, transboundary,
global)
iii. the specific content of the obligation.

c. Regarding (I above)
i. the UN Convention on Environmental Impact Assessment in a
Transboundary Context (Espoo Convention) 1991 States must
introduce into their domestic law the obligation to conduct an EIA
before authorizing certain activities that may have a ‘significant
adverse transboundary impact’.
ii. The ICJ in Pulp Mills case held that the obligation to conduct an
EIA has a customary grounding. According to the Court, a practice
has developed: “which in recent years has gained so much
acceptance among States that it may now be considered a
requirement under general international law to undertake an EIA
where there is a risk that the proposed industrial activity may
have a significant adverse impact in a transboundary context, in
particular, on a shared resource.”

d. Regarding (ii above)

i. the Espoo Convention and general international law seem to
confine the obligation to conduct an EIA to the transboundary
context. This leaves open the question of whether the customary
obligation also covers situations where the proposed activity
takes place in a purely domestic context or where it concerns
areas beyond national jurisdiction.
ii. The law under this area is also being evolved.
iii. Principle 17 of the Rio Declaration (which refers to the EIA as a
national instrument)
iv. Article 206 of UNCLOS (which aims to prevent ‘substantial
pollution of or significant and harmful changes to the marine
environment’ in general)

e. Regarding (iii above):

i. an important question that arises is whether the EIA must
necessarily involve consultation with potentially affected
populations. In the framework of the Espoo Convention, the
question is answered affirmatively in Articles 2(6) and 3(8), and
also features as a criterion to determine the significance of the
environmental impact of an activity.

42
 ii. But the answer is not clear outside the treaty framework. Though
the question arose in the Pulp Mills case, ICJ merely concluded
that no legal duty to consult the affected populations existed for
Uruguay on the basis of the ‘instruments invoked by Argentina

8. Polluter Pays Principle

a. Generally it means that it is the polluter, rather than the government or
the members of the public, who should bear the cost of pollution.
However the concept is much complicated:
i. The intended function of the principle in a given context, whether
redistributive, preventive or curative also influences its meaning.
(N Sadeleer, Environmental Principles: From Political Slogans to
Legal Rules (OUP 2002) 35-37
ii. Application of the principle depends upon the identification of the
polluter, the circumstances in which the polluter’s responsibility
to pay is triggered and the recipients of the payment –individuals
and/or the government – and the determination of what is to be
paid.
b. The principle from Economics to Law :
i. The principle is based on economic theory of externalities, which
says that the production and/or consumption of goods or services
may result in pollution or environmental harm/damage but often
these costs are not reflected in the market price of
goods/services. This results in inefficient economic choices as very
often public authorities or members of the public are bearing the
social & environmental costs of these externalities in the end.
ii. The idea of polluter pays in economics is about the internalization
of these externalities on the polluter itself. However this is
expected to increase the cost/price & reduce consumption of
pollution intensive products which will have its impacts on other
aspects (such as labour market, life of poor people etc)
c. Interventions by OECD/EU etc:
i. Framed by OECD in 1972 (Recommendation of the Council on
Guiding Principles Concerning International Economic Aspects of
Environmental Policies, 26 May 1972 ). It said:
1. ‘The principle to be used for allocating costs of pollution
prevention and control measures to encourage rational
use of scarce natural resources and to avoid distortions in
international trade and investment. This principle means
that the polluter should bear the expenses of carrying out
above mentioned measures…Such measures should not be
accompanied by subsidies that would create significant
distortions in international trade and investment’

43
 ii. In 1974 OCED reaffirmed it as a ‘fundamental principle’. However
what was intended was only a partial internationalization of
environmental costs by the polluter & the reduction of pollution
beyond a certain level was considered as neither practical nor
necessary in view of the costs involved. Also the polluter was not
required to pay anything to anyone. In this form, neither
prevention or control of pollution, nor imposition of liability for
pollution was envisaged.
iii. Later the scope of the principle was extended by OECD (1989) so
that the ‘potential polluter’ bears the cost of ‘reasonable
measures’ which are introduced by the public authority to
prevent and control accidental pollution from hazardous
installations. In 1991 OECD also recommended the internalization
of the cost of the damage arising from pollution, thus marking a
shift towards full-internalization.
iv. The same trend is visible in European Community/EU through
both various standards/documents (starting with soft law
instruments in 1973 & binding ones in 1986)
v. The Brundtland Commission also suggested that the
‘environmental costs of economic activities can be paid by the
enterprise’
d. Principle 16 of Rio Declaration:
i. The principle secured international support as an environmental
policy for first time in Earth Summit.
ii. Principle 16 of Declaration reads “National authorities should
endeavor to promote the internationalization 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 & investment’
e. Development of the Principle in India:
i. Indian Council of Enviro-Legal Action v. Union of India and Ors
(1996) 3 SCCC 212: The adverse environmental and health impacts
of water and soil pollution in Bichhri Vaillage, Udaipur District,
Rajastan as a result of dumbing of untreated wastewater and
highly toxic sludge (particularly iron based and gypsum based).
Relying on developments in OECD, EU and also academic
literature the SC observed that the principle ‘has now come to be
accepted universally as a sound principle’ and it has gained almost
universal recognition. The court appears to have looked at the
principle as a ‘general principle of law prevalent in other systems’
rather than as a principle of international environmental law. It is
also observed that the observation by the court in this case ‘ is

44
 much closer to the ordinary, common sense meaning of the term
‘polluter pays’

ii. Vellore Citizens Welfare Forum v. UoI(1996) 5 SCC 647 : Discharge

of untreated effluent by tanneries and other industries to river
palar in TN. It contaminated surface and ground water.
1. The court relied on two sources
a. Domestic Law (the constitution of India and
environmental statutes)
b. International law
2. Unlike Enviro-Legal Acion, the court relied on the
constitutional mandate on environmental protection
considering the history of braod interpretation of
constitutional provisions in the light of Article 21.
3. Though in none of the statutes that existed in India [Water
(prevention and control of Pollution) Act 1974; EPA 1986;
Air (Prevention and control of Pollution ) Act 1981] the
court had ‘no hesitation in holding’ that the polluter pays
principle is part of ‘the environmental law of the country)
4. Concerns were: None of the environmental statutes in
India had a provision on paying of compensation for
restitution of damaged environment (but only included
fines and imprisonment at EPA s. 15; Water Act- SS 41-
45A; Air Act –SS 37-39).
5. However, the courts reading of the polluter pays principle
into the provisions of these statutes may be justified on
the ground that these statutes prescribe standards for
prevention and control of pollution and the polluter is
required to bear the cost of compliance with the statutes.
In this sense the Indian law partly mirror the polluter pays
principle.
6. International dimension of polluter pays principle and
courts interpretation in Vellore case: The court held that
Sustainable Development has been already accepted as a
part of ‘customary international law’ & the court
identified Polluter Pays Principle as one of the ‘salient
principles’ and ‘essential features’ of sustainable
development.
7. Thus the court considered the Polluter Pays Principle as a
customary principle of international law. The court held “
it is an accepted proposition of law that the rules of
customary international law which are not contrary to the
municipal law shall be deemed to have been incorporated

45
 in the domestic law and shall be followed by the court of
law” in India.
8. However it may be noted that the Polluter Pays Principle
has not been (at least directly) accepted as customary
source of International law by any international courts.
9. It may also be noted that though the court did not directly
refer Principle 16 of Rio Declaration which explicitly relates
to the polluter pays principle.
iii. Both these decisions have been relied upon in a number of
further decisions:
1. M.C Mehta v. UoI (1997) 3 SCC 715 (Badkhal and Suraj
Kund Lake cases) at para 8.
2. Jaganath v. UoI (1997) 2 SCC 87 (shrimp farming and
pollution caused by it) at para 49 (
3. NC Mehta v. UoI (1997) 2 SCC 411 (Culcuttta Tanneries
case) at para 18
4. MC Mehta v. UoI (1997) 2 SCC 353 (Taj Trapezium case) at
para 32
5. MC Mehta v. Kamal Nath (1997) 1 SCC 388 at para 37
6. etc .
iv. In Research Foundation for Science Technology Natural
Resources Poilicy v UoI (2005) 13 SCC 186 the court specifically
relied on Principle 16 of the Rio Declaration.
f. Application of Absolute Liability Principle:
i. In the context of environmental pollution, liability rules can
perform a curative pr preventive function.
1. The curative function is performed when the polluter is
held responsible for environmental damage and the
payment of compensation to victims.
2. Liability rules also perform a preventive function when the
probability of damages incentivizes measures to reduce or
preempt environmental damages.
3. The nature of liability may be fault based or no-fault
liability
4. In the case of fault based liability, harm results from non-
compliance with regulatory requirements, or the breach of
a general duty of care (also known as negligence). In this
type the affected party is required to prove (burden of
proof) the fault of the polluter, which is challenging. The
polluter is also not liable to pay damages for
environmental harm, which is neither reasonably
foreseeable nor avoidable.
5. In the case of no-fault or strict liability (based on the rule
of Rylands v. Fletcher [(1868) LR 3 HL 330] ) there is no

46
 requirement to prove the polluters fault but subject to
exceptions such as act of god, act of third party, plaintiff’s
own fault, plaintiffs consent and natural use of land. The
liability may be limited and the definition of damage tends
to be narrow.
ii. The Absolute Liability principle:
1. Developed by the SC in MC Mehta v. UoI (Oleum Gas Leak
Case) where the leakage of oleum gas from a unit of
Shriram Foods and Fertilizer Industries on 4 th & 6th
December 1985 which injured several persons and killed
one was considered.
2. The court held: “Where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm
results to anyone on account of an accident in the
operation of such hazardous or inherently dangerous
activity resulting, for example, in the escape of toxic gase
the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident
and such liability is not subject to any of the exceptions
which operate visa-a-vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher.”
3. The court further observed: “…the measure of
compensation …must be corelated to the magnitude and
capacity of the enterprise because such compensation
must have a deterrent effect. The larger and more
prosperous the enterprise, the greater must be the
amount of compensation payable by it for the harm
caused on account of an accident ..” Commented [h39]: important
4. In Bhopal gas case the MP HC applied Absolute liability
principle but it was not implemented due to settlement
through Bhopal Gas Leak Disaster (Procession of Claims )
Act 1985. When this Act was challenged the SC refused to
apply the principle because of the ‘perceived difficulty in
the acceptance of this yardstick’ (Charan Lal Sahu v. UoI
(1990) 1 SCC 613) While JJ Mukharji, Saikia, Ranganathan,
and Ahmadi held this view J KN Singh held that the UCC
had accepted its liability by entering into the settlement.
5. When it was raised in UCC v. UoI (1991) 4 SCC 584, the SC
said that the principle of absolute liability in Oleum gas
leak case was only an Obiter.
6. After that the judiciary explored the relationship between
the polluter pays principle and absolute liability principle.
In Enviro Legal Action the court after opining that ‘any
principle in regard to polluters liability, it relied on

47
 Absolute liability principle. The court held that polluting
industries are ‘absolutely liable to compensate for the
harm caused by them to the vilagers in the affected are, to
the soil and to the underground water…they are bound to
take all necessary measures to remove the sludge and
other pollutants lying in the area ..and to bear the cost of
remedial measures to restore the soil and the
underground water sources’. The court held that polluter
pays principle is stated in absolute terms in Oleaum Gas
Leak Case.
g. Definition of Polluter Pays Principle in India:
i. In Vellore case the court held “the polluter pays principle means
that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also to the
cost of restoring the environmental degradation. Remediation of
the damaged environment is part of the process of sustainable
development and as such polluter is liable to pay the cost to the
individual sufferers as well as the cost of covering the damaged
ecology.” Commented [h40]: Definition of Polluter Pays in India
ii. Hence the polluter pays principle in India goes beyond the
formulation of the same in International environmental law
h. Who is a Polluter?
i. Polluter is the person or entity responsible for the polluting
activity. In Research Foundation II case the court defined polluter
as the producer of goods.
ii. The NGT in Manoj Misra v. UoI (2013) in the case of disposal of
debris amd construction work in the banks of Yamuna the polluter
also included the contractor and the truck owner who were
responsible for dumping as well as the person whose property
created the waste. The NGT also imposed fines on the regulatory
authorities for dereliction of statutory duty.
iii. In Invertis University v. UoI (2013) NGT held that the Municipal
body was responsible for cpmpensation for restitution of the solid
site to its original condition and to prevent further damage to the
environment.
iv. In Rohit Choudhary v. UoI ((2012) NGT held that MoEFCC and
Govt of Assam as polluters for permitting unregulated mining
activities in and around Kaziranga National Park.
v. In M/S Cox India Ltd v. MP Pollution Control Board (2013) NGT
held that the regional officer of SPCB as polluter due to his failure
to furnish correct information about the condition of a distillery
unit for rectified spirit.
vi. In Gaurav Jain v. State of Punjab (2013) NGT considered the public
as polluter by saying the authorities will be at liberty to ask for

48
 payment of money from the entire population generating
municipal solid waste in order to generate funds for effective
execution of Municipal solid waste disposal.
vii. In saloni Singh v UoI (2014) NGT held responsible persons found
defecating on the railway tracks to pay RS 5000/- per offence
viii. In Wazir Our Bartan Nirmata Sangh v. UoI ( 2002) SCC Del 1335
the court held that pollution and ecological problems resulting
from the unhygienic conditions created by encroachers on public
land as a reason for directing their displacement.
ix. Courts in India applied the polluter pays principle regardless the
socio-economic background of the polluters…What if the polluter
is not able to pay?
x. Environmental harm is not confined to polluting activities alone. It
also includes unbridled consumption of natural resources such as
mining activities etc. The court in Nature Lovers Movement v.
State of Kerala (1999) SCC Ker 191, applied the principle of
polluter pays and directed the State government to determine the
quantum of injury and compensation payable by
occupants/encroachers in forest land by calling it as ‘User Pays
Principle”.
i. Challenges:
i. Assessment of Loss and determination of Compensation: Is the
court competent to do it? Problem of identification of polluters
and also the victims…
ii. What does the polluter pay : prevention or curative?
iii. Full internalization approach: How effective in case of irreversible
damage?
iv. How to calculate the market value of natural resources and the
ecology? Calculation of a ‘Net Present Value (NPV)’ for the
diversion of forest land for non forest purposes as recommended
by SC in TN Godavarman Thirumilpad v. UoI where the court held
that NPV as well the payments received towards compensatory
afforestation, additional compensatory afforestation, penal
compensatory afforestation, etc to be deposited with the
Compensatory Afforestation Planning and Management
Authority.
v. Is it ‘Pollute and Pay’?

9. Common But Differentiated Responsibility (CBDR) / based on Respective

Capabilities (CBDR-RC)
a. Principle 7 of Rio Declaration: “In view of the different contributions to
global environmental degradation, States have common but
differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable

49
 development in view of the pressures their societies place on the global
environment and of the technologies and financial resources they
command”
b. The principle holds that although all countries have a Common
Responsibility for the development of global society and to
prevent/mitigate the common problems, owing to historical reasons of
environmental degradation (colonization/industrialization/slavery etc) Commented [h41]: Discussed above in the Notes
each has a different set of capabilities that they can contribute twards
this common responsibility & thus differentiated responsibilities.
c. The Stockholm declaration, for instance states that policy makers must
consider, “the applicability of standards which are valid for the most
advanced countries but which may be inappropriate and of unwarranted
social cost for the developing countries.” CBDR aims to take these
differences into account when goals and benchmarks are applied to
global development agendas. The logic is that if the expectations levied
on countries are more appropriate to their national capabilities (social,
economic, environmental, etc.), individual country efforts will more
effectively complement each other.
d. CBDR aims to distribute the effort required to manage environmental
problems of a global nature, such as the protection of the ozone layer,
the fight against climate change or the conservation and use of
biodiversity, among States by balancing conflicting requirements of
development and environmental protection.
e. Developing countries see it as a way to gain recognition for their
development needs, their reduced ability to contribute to the
management of environmental problems and also their lower
contribution to their creation.
f. Developed countries consider it as a tool to ensure participation of
developing countries in the management of environmental problems and
to ensure that the development process takes place within certain
environmental bounds.

10. Participation
a. The principle of participation speaks about the duty of States to provide
various channels of participation to groups and individuals potentially
affected by projects, activities or environmental policies and aims to
consider the interests of these stakeholders in the relations among
themselves or between private stakeholders and the State.
b. Principle 10 of the Rio Declaration, says that:
i. “Environmental issues are best handled with participation of all
concerned citizens, at the relevant level. At the national level,
each individual shall have appropriate access to information

50
 concerning the environment that is held by public authorities,
including information on hazardous materials and activities in
their communities, and the opportunity to participate in decision-
making processes. States shall facilitate and encourage public
awareness and participation by making information widely
available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.”
c. Environmental Democracy: Rio Principle 10 introduces three
components of ‘environmental democracy’ (These are also three
procedural right to environment):
i. right to access environmental information
ii. right to participate in the decision-making process on
environmental matters
iii. right to judicial recourse.
d. See also the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental
Matters, 1998

The Indian position on Participation shall be discussed later

11. Inter-Generational Equity

a. Every generation holds the Earth in common with members of the
present generation and with other generations, past and future. The Commented [h42]: Intra-Generational Equity
principle articulates a concept of fairness among generations in the use Commented [h43]: Inter-Generational Equity
and conservation of the environment and its natural resources
b. Aims to achieve Distribute Justice: To retain the quality and availability of
natural resources and the necessary efforts for their conservation
between present and future generations.
c. The preamble of the International Convention for the Regulation of
Whaling, 1946 contains a reference to the interest of ‘nations of the
world in safeguarding for future generations the great natural resources
represented by the whale stocks’.
d. Principle 1, of Stockholm Declaration noted that: ‘Man . . . bears a solemn
responsibility to protect and improve the environment for present and
future generations’
e. Brundtland Commission Report focused on meeting the needs of present
generations without compromising those of future ones.
f. Principle 3, Rio Declaration, states that: “the right to development must
be fulfilled so as to equitably meet developmental and environmental
needs of present and future generations”

51
Equitable use, or intragenerational equity

Equitable use, or intragenerational equity

52
 12. Sustainable Development
Discussed earlier in this Notes

13. Common Heritage of Mankind (More appropriate to be called as Common

Heritage of Humanity ) CHM
a. Commons belong to all humanity and that their resources are available
for everyone’s use and benefit, taking into account future generations
and the needs of developing countries. It is intended to achieve aspects
of the sustainable development of common spaces and their resources,
but may apply beyond this traditional scope.
b. Core Elements
i. The principle of non-appropriation: No state or person can own
common heritage spaces or resources. They can be used but not
owned, as they are a part of the international heritage
(patrimony) and therefore belong to all humankind. This protects
the international commons from expanding jurisdictional claims.
When CHM applies to areas and resources within national
jurisdiction, exercise of sovereignty is subject to certain
responsibilities to protect the common good.

53
 ii. Principle of Cooperation: The use of common heritage shall be
carried out in accordance with a system of cooperative
management for the benefit of all humankind, i.e., for the
common good. This has been interpreted as creating a type of
trustee relationship for explicit protection of the interests of
humanity, rather than the interests of particular states or private
entities. There shall be active and equitable sharing of benefits
(including financial, technological, and scientific) derived from the
CHM. This provides a basis for limiting public or private
commercial benefits and prioritizing distribution to others,
including developing states (intragenerational equity between
present generations of humans).
iii. Peaceful Use : CHM shall be reserved for peaceful purposes
(preventing military uses).
iv. Inter-Generational Equity: CHM shall be transmitted to future
generations in substantially unimpaired condition (protection of
ecological integrity and inter-generational equity between
present and future generations of humans).
Read more @ https://wealthofthecommons.org/essay/common-heritage-mankind-bold-
doctrine-kept-within-strict-
boundaries#:~:text=No%20state%20or%20person%20can,commons%20from%20expanding%2
0jurisdictional%20claims.

14. Common areas/ Commons:

a. Refer to the discussion on Private Property, Public Property and
Commons & also on Tragedy of Commons
b. The concept is characterized by two main components, namely
i. free access to a common resource
ii. impossibility of appropriation
c. UNCLOS guarantees free access to and use of the high seas, while
imposing restrictions on the use of biological resources.
d. Another example is Antarctica. The preamble to the Antarctic Treaty,
1959, recognized that it was in ‘the interest of all mankind’ that
Antarctica be used for peaceful purposes only. The Treaty ‘freezes’ all
sovereignty claims over the Antarctic zone.

15. Common Concern of Mankind (More appropriate to be called as Common

Concern of Human Kind) – CCH
a. Specific Concerns that would affect the Human Kind such as Climate
Change
b. The CCH is based on the concept that ecological shadow do not respect
national political boundaries

54
 Read more @
https://www.un.org/depts/los/biodiversity/prepcom_files/BowlingPiersonandRa
tte_Common_Concern.pdf

16. Public Trust Doctrine

a. No explicit mention in any environmental legislation in India so far (NGT
Act S 20 mentions PP, PPP and SD but not PTD). However the draft River
Basin Management Bill 2012, draft National Water Framework Bill 2016
proposed by Ministry of water resources refer to the doctrine.
b. MC Mehta v. Kamal Nath (1997) 1 SCC 388 – First Case
i. the court could have proceeded with penalizing encroachment,
still it is unclear why instead PTD was used. The court said “area
being ecologically fragile and full of scenic beauty should not have
been permitted to be converted into private ownership and for
commercial gains’ & the govt while doing so committed a ‘patent
breach of the trust’ held by it”- This quote by the SC was from
Joseph L Sax ‘the Public Trust Doctrine in Natural Resources Law
1970 Michigan Law Review
ii. The court said “the state is the trustee of all natural resources
which are by nature meant for public use and enjoyment. Public
at large is the beneficiary of the sea-shore, running waters, airs ,
forests and ecologically fragile lands. The state as a trustee is
under a legal duty to protect natural resources. These resources
meant for public use cannot be converted into private ownership”
iii. The Court further observed:
1. “all natural resources which are by nature meant for public
use and enjoyment are held in trust by the State and such
properties are of great importance to the people as a
whole”
2. Public at large is the beneficiary of the sea shore, running
waters, airs, forests and ecologically fragile lands and the
court sees no reason why the PTD should not be expanded
to include all ecosystems operating in our natural
resources

c. After Kamal Nath decision the Indian judiciary further expanded this:
i. Wild life: Common Cause v UoI (1999) 6 SCC 667
ii. Lakes: Intellectual Forum Thirupathi v. State of AP (2006 ) 3 SCC
549
iii. Forests : TN Godavarman v UoI (2006) 1 SCC 1
iv. Underground Water : State of WB v. Keshoram Industries (2004)
10 SCC 201 /Perumatty Grama Panchayat v State of Kerala (2003)
SCC OnLine Ker 500.

55
 v. Seashores : Fomento Resorts v Minguel Martins –(2009) 3 SCC 571
vi. Spectrum : Centre for Public Interest Litigation v. UoI (2012) 3 SCC
1 (2G Spectrum Case) ---Whether the Govt has the right to
alienate, transfer, or distribute natural resources otherwise than
by following a fair and transparent method consistent with the
fundamentals equality clause enshrined in the constitution”
vii. Etc….

17. Rights of Nature (RoN) Movement /Earth Rights Movement

a. Human Rights Jurisprudence recognize the intrinsic value of human
beings irrespective the differences amongst them (such as gender, race,
social, economical etc.) and attaches inalienable, universal, human rights
on them. The same way RoN Movement argues in the recognition of
Intrinsic value among all elements of the planet (both abiotic and biotic).
Human beings is just one of those elements without any supremacy
compared to other elements
b. RoN movement is against the use of the word ‘Natural Resources’ as the
term Resources signifies Property. RoN is against categorizing Nature in
economic terms and commodifying the same.
c. In RoN movement Nature is the Subject bearer of the Rights (personhood
is attached to them). These Rights are enforced through a Guardian (who
could be an individual/community/NGO/State or its officers)
d. So far countries such as Equador, New Zealand, few states in the USA, etc
have recognized RoN as part of their legal system. In India Uttarakhand
HC recognized the same (partially )in Mohmed Salim v State off
Uttarakhand (2017)-Ganga; & Lalit Miglani v. State of Uttarakhand
(2017)- Glaciers

56
 SUBSTANTIVE AND PROCEDURAL ENVIRONMENTAL RIGHTS Commented [h44]: The methods and procedures for upholding
obligations and rights as well as securing redress are set forth by
• The Environmental Rights and the corresponding duty further can be classified in two procedural law, and the law that establishes, defines, clarifies, or
more categories: governs obligations and rights is referred to as substantive law.

▪ Substantive Environmental Rights

▪ Procedural Environmental Rights

o Substantive Environmental Rights ( and the corresponding Duties)

▪ The substantive right to environment is the recognition of the substantive
“Right to Environment” [RTE] and also Right to various elements of the
environment such as ‘Right to –Clean-Potable-Drinkable- Water’, OR
‘Right to –clean – pollution free- breathable- Air” etc.

▪ Many authors have been endorsing on this Substantive right to

environment [RTE] and the corresponding duties in the International
Environmental Law. You may read:
• James W. Nickel, ‘The Human Right to a Safe Environment:
Philosophical Perspectives on its Scope and Justification’ (1983) 18
Yale Journal of International Law 281 @
https://core.ac.uk/download/pdf/72837512.pdf . This article
argues that ‘Right to Safe Environment’ [RSE] is a human right as it
tests of being an independent human right. Thus it has
corresponding duties on States/Governments, and also on
Corporations & Individuals.
• Dinah Shelton, Human Rights, and the Right to Environment’
(1991) 28 Stanford Journal of International Law 103 @
https://heinonline.org/HOL/Page?public=true&handle=hein.journ
als/stanit28&div=10&start_page=103&collection=journals&set_as
_cursor=0&men_tab=srchresults

▪ RTE or RoE?
• However the usage ‘Right to Environment’ [RTE] is essentially an
anthropocentric argument as it suggests that human beings have
a right TO the environment. Here the preposition ‘TO’ indicates
that someone else (probably Human Beings’ have a ‘Right to
Environment’ or ‘Right to Safe Environment- RSE’ . This is the
genesis of the argument that RTE or any of the specific rights
under it (such as RSE, Right to Water, Right to Pollution Free Air
etc. ) are Human Rights.

• The Ecocentric /’Rights of Nature –RoN’ perspective of the same

would be ‘Rights of the Environment [RoE] . The preposition ‘Of’
connects the terms ‘Rights’ and ‘Environment’ to mean that
Environment is the holder of the Rights.

57
 • With this backdrop read Ghosh, Shelley, Right to Environment and
Right of Environment- A Critique (written by an LL.M student of
NLSIU). Available at
SSRN: https://ssrn.com/abstract=2062997 which contends that
the ideas of the "RIGHT TO ENVIRONMENT" (RTE) and the "RIGHT
OF ENVIRONMENT" (RoE) are the two primary environmental
ethical arguments that have been conceptualized in the current
environmental law discourse. The latter is based on the
recognition of the rights of the environment as a whole (RoN),
wherein the environment is the central subject of protection. The
former concept is based on an anthropocentric notion wherein
human rights are given preferential value over protecting the
environment.

▪ RTE or RoE: Evaluating the evolution of law in India

• Definition of Environment
o [Section 2 (a) of the Environmental Protection Act, 1986
defines Environment as ”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”

• Evolution of RTE in India

• In the past 4 decades Indian courts have identified, either
explicitly or implicitly’ different legal sources of the ‘Right to
Environment’ [RTE]. The contemporary logic of accommodating
RTE as a substantive environmental right in India is by linking it
with ‘Right to Life’ under Article 21 of the Constitution of India.

• While we evaluate cases from the Indian judiciary in linking RTE to

Right to Life -RTL (Article 21 of the Constitution) there are/were
different trends that were evident.

o Implicit Recognition of the Link between RTE and RTL:

▪ For example in Francis Coralie Mullin v. The
Administration, Union Territory of Delhi (1981) 1
SCC 608, the SC observed that the RTL includes
‘right to live with human dignity and all that goes
along with it namely, the bare necessaries of life,’ .
This statement is followed by an indicative list of
bare necessaries of life. The list starts with the
term ‘Such as’ and adequate nutrition, clothing,

58
 shelter etc. Though the list do not include RTE, the
term ‘Such as’ makes it an inclusive list.

▪ Similarly in Bandhua Mukti Morcha v. Union of

India (1984) 3 SCC 161 though there was no explicit
reference to RTE, while reading Articles 39 (e) and
(f); 41; & 42 of DPSP into Riight to life under Artcle
21, made the following observations which would
imply RTE in India as part of RTL. The Court
recognized the following aspects as part of RTL
under Article 21 for the vulnerable section of the
society i.e. workmen (that included children as
well)
• Healthy Decent Life
• Pollution free breathable air
• Pure drinking water
• Sanitation

▪ In Chhetriya Pardushan Mukti Sangharsh

Samiti v. State of Uttar Pradesh (1990) 4 SCC 449
at para 8, the SC stated “Every citizen has a
fundamental right to have the enjoyment of quality
of life and living as contemplated by Article 21 of
the Constitution of India. Anything which
endangers or impairs by conduct of anybody either
in violation or in derogation of laws, that quality of
life and living by the people is entitled to be taken Commented [h45]: If environmental degradation threatens the
RTL, then remedy under Article 32 is available
recourse of Article 32 of the Constitution.”

▪ Again in Indian Council For Enviro-Legal Action

v.UoI (1996) 3 SCC 21, at para 54 the SC said “If an
industry is established without obtaining the
requisite permission and clearances and if the
industry is continued to be run in blatant disregard
of law to the detriment of life and liberty of the
citizens living in the vicinity, can it be suggested
with any modicum of reasonableness that this
Court has no power to intervene and protect the Commented [h46]: There two critical points here. (1) Right to
fundamental right to life and liberty of the citizens Life and Liberty under article 21 is not specific to Citizens but for all
Persons. So did the SC actually intended to restrict the scope of
of this country” Artcle 21 in this context only to Citizens or was it a error/negligence
on the part of the SC.
(2) The court further restricts the availability of this right to citizens
o Explicit recognition of ‘RTE’ by linking it to RTL but the living in the vicinity. Considering the concept of ‘Ecological Shadow’ ,
facts and issues of the cases were not related to its global impact and the common concerns such as Climate Change,
the restriction of ‘Right to remedy’ to citizens living in the Vicinity
environmental protection at all. cannot be appreciated.

59
 ▪ Shantistar Builders v Narayan Khimalal
Totame (1990) 1 SCC 520 was a case regarding
some issues in the housing scheme project for the
weaker sections in the society. At para 9 says
“Basic needs of man have traditionally been
accepted to be three-food, clothing and shelter.
The right to life is guaranteed in any civilized
society. That would take within its sweep the right
to food, the right to clothing, the right to decent
environment and a reasonable accommodation to Commented [h47]: In fact this is the only reference to
‘environment’ in this case. Was it an Obiter or Ratio?
live in.”
▪
o In few cases involving environmental issues the RTE was
explicitly recognized but no reference is made to RTL.
▪ Rural Litigation and Entitlement Kendra v State of
UP (1985) 2 SCC 431 the SC recognized RTE while it Commented [h48]: Nowhere in the case there is a mention
about Right to life or Article 21.
stated that “…protecting and safeguarding the
right of the people to live in healthy environment
with minimal disturbance of ecological balance and
without avoidable hazard to them and to their
cattle, homes and agricultural land and undue
affectation of air, water and environment .”
However in a later case by the AP HC, T Damodhar
Rao v The Special Office, Municipal Corporation of
Hyderabad (1987) SCC OnLine AP 6, the court
opined that, the SC could have done so only
because there was a violation of RTL/Art 21 though
not specifically mentioned in the judgement.

o Explicit Recognition of RTE as part of RTL/UA 21

▪ Right to Environment (or to various components of
the environment such as clean air, clean drinking
water etc. ) have been explicitly recognized as part
of Right to Life under Article 21 in many cases and
this is the existing logic of interpretation now.
However Article 21 uses the word ‘Persons’ and
not Citizens. So there are few judicial decisions that
use the word ‘Citizens’ instead while reading RTE Commented [h49]: Read at least the head notes
into RTL u/a 21. Commented [h50]: Gross ignorance by the SC. Article 32 is
available to citizens and other persons depending upon which FR has
been violated. Linking RTE as a derivative of RTL u/a 21 and
▪ In Subhash Kumar v State of Bihar (1991) 1 SCC 598 restricting it only for the citizens is a wrong as RTL under article 21 is
available for all Persons.
the SC held “Article 32 is designed for the
enforcement of Fundamental Rights of a citizen by Part III of the Constitution of India uses the word ‘Citizens’ and
‘Persons’ in different articles.
the Apex Court. It provides for an extraordinary Articles 14, 20, 21, 22, 25, 27 ...

60
 procedure to safeguard the Fundamental Rights of
a citizen. Right to live is a fundamental right under
Art 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 Art, 32 of the
Constitution for removing the pollution of water or
air which may be detrimental to the quality of life.

▪ In A.P. Pollution Control Board vs Prof.M.V.Nayudu

(1999) 2 SCC 718 the court stated: “Environmental
concerns arising in this Court under Article 32 or
under Article 136 or under Article 226 in the High
Courts are, in our view, of equal importance as
Human Rights concerns. In fact both are to be
traced to Article 21 which deals with fundamental
right to life and liberty. While environmental
aspects concern `life', human rights aspects
concern `liberty'. In our view, in the context of Commented [h51]: Cannot agree with this statement. Both
environmental degradation and violation of HR affects both Life and
emerging jurisprudence relating to environmental Liberty. Rights and Liberty are closely connected with each other
matters, - as it is the case in matters relating to and court should have avoided making such lose statements.
human rights, - it is the duty of this Court to render
Justice by taking all aspects into consideration.”

▪ Similarly in MC Mehta v Kamal Nath (2000) 6 SCC

213 the court held “Any disturbance of the basic Commented [h52]: This is a follow up of 1996 MC Mehta v
Kamal Nath case, for determining the quantum of pollution fine
environment elements, namely air, water and soil,
which are necessary for "life", would be hazardous
to "life" within the meaning of Article 21 of the
Constitution.”

▪ After these cases the RTE is firmly established in

India as part RTL u/a 21 and further developed
through various judicial decisions. Some of the
further growth of RTE in India are:

o RTE ,DPSP & Fundamental Duties

▪ Article 48A is the only constitutional provision that

explicitly lays down the duty on the State in respect
of the environment. It says “Protection and
improvement of environment and safeguarding of
forests and wild life- The State shall endeavour to

61
 protect and improve the environment and to
safeguard the forests and wild life of the country.”

▪ In Virender Gaur v State of Haryana (1995) 2 SCC

577 while interpreting the meaning and definition
of ‘Environment’ under Article 48-A , the Court
with the aid of Article 47 and Article 51-A(g) stated Commented [h53]: Which imposes the duty on the State to
improve public health as its primary duty
that the word “…Environment is of broad spectrum
Commented [h54]: which imposes a fundamental duty on
which brings within its ambit hygienic atmosphere every citizen of India to protect and improve the natural
and ecological balance.” The court stated further environment including forests lakes, rivers and wild life and to have
compassion for living creatures
that it is, therefore, not only the duty of the State
but also the duty of every citizen to maintain
hygienic environment. “The State, in particular has
duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy
to maintain ecological balance and hygienic
environment. Enjoyment of life and its attainment
including their right to life with human dignity
encompasses within its ambit, the protection and
preservation of environment, ecological balance
free from pollution of air and water, sanitation
without which life cannot be enjoyed. Any contra
acts or actions would cause environmental
pollution. Environmental ecological, air, water,
pollution, etc. should be regarded as amounting to
violation of Article 21. Therefore, hygienic
environment is an integral facet of right to healthy
life and it would be impossible to live with human
dignity without a humane and healthy
environment.” So the RTE which is now an aspect
of RTL has to understood in the context of article
47 (public health as a duty of the state) and also
article 51Ag which imposes the fundamental duty
on the citizens. In the context of Globalization and
its opportunities for non-citizens to undertake
economic activities in India I am of the opinion that Commented [h55]: or activities outside India that would impact
the environment in India.
linking the RTE to fundamental duty towards
environmental protection of citizens under 51Ag is
problematic. Of course all rights have
corresponding duties including RTE. But that duty
should flow from Article 21 (where all persons have
RTE and all persons have corresponding Duty not to
violate the RTE of others). If the corresponding
duty of RTE is read into Article 51Ag,it would lead

62
 to situation where all Persons have RTE but only
Citizens have Duties. The fundamental duty under
artcle 5t1Ag should be independent of the
corresponding duty of RTE. But the duty of the
State under various articles of DPSP including
article 48A can be effective tools in determining
the duties of the State

▪ In M.C Mehta v. Union of India (2002) 4 SCC 356

(The Delhi CNG Vehicles case) the Court held that
“ Article 39 (e), 47 and 48A by themselves and
collectively cast a duty on the State to secure the
health of the people, improve public health and
protect and improve the environment.”

▪ In C. Kenchappa v State of Karnataka, the HC held

that “… right to environment has been recognised
as a fundamental right. It is to be noticed that it
would be reasonable to hold that the enjoyment of
life and its attainment and fulfillment guaranteed
by Article 21 of the constitution embraces the
protection and preservation of nature's gifts
without which life cannot be enjoyed. The slow
poisoning of the environment caused by
environmental pollution and spoilation should be
regarded as amounting to violation of Article 21 of
the Constitution. Article 47 casts duty on the State
to raise the level of nutrition and the standard of
living and to improve public health. The standard of
living and public health cannot be improved unless
there is pollution-free air and water. Article
48 provides that the State shall endeavour to
organise agriculture and animal husbandry on
modern and scientific lines and take steps to
improving and preserving the breeds, and
prohibiting the slaughter of cows and calves and
other milch and draught cattle. As stated
supra, Article 48-A delegates the State to protect
and preserve the environment and to safeguard
the forests and wildlife of the country. Article 51-
A(g) casts a fundamental duty on the State to
protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to
have compassion for living creatures. It is necessary

63
 here to note that living creatures include cattle,
sheep, goats, poultry and other animals in the
villages. Whenever fundamental rights are violated,
one can approach the Apex Court directly
under Article 32 of the Constitution and the High
Court under Article 226 of the Constitution. These
are the constitutional provisions provided to an
aggrieved person or a citizen whenever there is an
attempt to imbalance the ecological equilibrium, to
bring it to the notice of the constitutional Courts
for redressal.”

▪ Dr Lavanya Rajamani in one her articles have

argued that, since RTE is derived from Article 21
which is framed as a Negative Right, it is not an
actionable self-executing right. [Lavanya Rajamani,
The Right to Environmental Protection in India:
Many a Slip between the Cup and the Lip?’ 16 Rev.
Eur. Comp. & Int'l Envtl. L. 274 (2007)]. That being
the case, considering the SC statement that FR and
DPSP are ‘like two wheels of a chariot, one no less
important than the other’ [Minerva Mills Case,
(1980) 3 SCC 625], a combined reading of RTE u/a
21 and the states duty under 48A (positive right)
would make RTE under article 21 as a positive right
and actionable.

o RTE , Conservation of Natural Resources and Preservation

of Ecological Balance

▪ Intellectual Forum, Thirupathi v State of Andhra

Pradesh (2006) 3 SCC 549, the court held that “the
Judicial Wing of the country, more particularly, this
Court has laid down a plethora of decisions
asserting the need for environmental protection
and conservation of natural resources. The
environmental protection and conservation of
natural resources has been given a status of a
fundamental right and brought under Art. 21”

▪ See also Rajendra Singh v Government of NCT of

Delhi where the SC verbatim reproduced the same
sentence in the above case.

64
o RTE, Sustainable Development and other Rights
▪ ND Jayal v UoI (2003) –TEHRI dam case/ the SC held
“….adherence of sustainable development principle
is a sine qua non for the maintenance of the
symbiotic balance between the rights to
environment and development. Right to
environment is a fundamental right. On the other
hand right to development is also one. Here the
right to 'sustainable development' cannot be
singled out. Therefore, the concept of 'sustainable
development' is to be treated an integral part of
'life' under Article 21. The weighty concepts like
inter-generational equity State of Himachal
Pradesh v. Ganesh Wood Products, [1995] 6 SCC
363, public trust doctrine M C Mehta v. Kamal
Nath, [1997] 1 SCC 388 and precautionary principle
(Vellore Citizens), which we declared as
inseparable ingredients of our environmental
jurisprudence, could only be nurtured by ensuring
sustainable development”. Further on the
necessity of strict compliance of the provisions of
the Environmental Protection Act, 1986, the SC
stated “"Thus the power under the Act cannot be
treated as a power simpliciter, but it is a power
coupled with duty. It is the duty of the State to
make sure the fulfilment of conditions or direction
under the Act. Without strict compliance, right to
environment under Article 21 could not be
guaranteed and the purpose of the Act will also be
defeated. The commitment to the conditions
thereof is an obligation both under Article 21 and
under the Act.”

o RTE and Right to Live in a Pollution Free Environment

▪ Another formulation of RTE may be expressed as
right to live in a pollution free environment /
atmosphere / water/air etc. Some of the cases are:

▪ M.C. Mehta v Union of India (1991) 2 SCC 353 &

(1992) 3 SCC 256 was a case relating environmental
pollution due to mechanical stone crushing
activities in Delhi. The SC held that every citizen
has a right to fresh air and to live in a pollution free

65
 environment as part of right to life u/a 21. The
court held that “…environmental changes are
the inevitable consequence of industrial
development in our country, but, at the same
time the quality of environment cannot be
permitted to be damaged by polluting the Air,
Water and Land to such an extent that it becomes
a health-hazard for the residents of the area.”
▪ Indian Council for Enviro- Legal Action v. Union of
India 1996 SCC (3) 212 –discussed above
▪ Vellore Citizen Forum v Union of India (1996) 5 SCC
647 – discussed above
▪ Charan Lal Sahu v UoI (1190) 1 SCC 613 – discussed
above
▪ Subhash Kumar v UoI –discussed above
▪ And many other cases

o RTE and Right to Water (RTW) and Right to Sanitation

▪ Out of the various uses of water and issues in
water law and policy (such as Right to Drinking
water; Right to Sanitation, Right to exploit Ground
Water,water for agriculture, rights involved in
international waters, Inter-state Waters, water for
irrigation, water for industrial uses, dams etc…) I
believe that only two of them have HR status in
International law viz. Right to Drinking Water and
Right to Sanitation.[Human Right to Water and
Sanitation-HRWS]. Except these two, I believe that
HR to any other uses of water has not been
recognized in International law.

▪ In India, the precedents below are few illustrations

on the recognition of RTW and Sanitation as
integral aspect of right to life. Read more @
https://nhrc.nic.in/sites/default/files/Right%20to%
20Santation.pdf &
https://www.soppecom.org/pdf/Right-to-
sanitation-in-India-Nature-scope-and-voices-fro-
%20the-margins.pdf

▪ Probably the definition of right to water as per the

National Health Bill, 2009 summarises the position
in India. In section 2 kk it defines right to water
“means at least, right of everyone to adequate,

66
 safe, acceptable, physically accessible and
affordable water for personal and domestic uses,
which would mean access at least to adequate
amount of safe water that is necessary to prevent
death from dehydration, to reduce the risk of
water-related disease and to provide for
consumption, cooking, personal and domestic
hygienic requirements.”. This Bill emphasizes on
water as one of the most important determinants
of Health.

▪ For long there were debates in the international

law platforms on the status of water as a Human
Right. Since there was nothing explicit in any of the
binding international human rights instruments on
the status of water as an HR, few argued that it is
not a HR but many argued that RTW is implicit in
international HR documents. For the evolution of
law in this area read more @
https://www.lawteacher.net/free-law-
essays/international-law/right-to-water-
international-law-7031.php

▪ Access to water and sanitation are recognized by

the United Nations as human rights, fundamental
to everyone’s health, dignity and prosperity finally
in 2010 and 2015 respectively. Read more @
https://www.unwater.org/water-facts/human-
rights-water-and-sanitation

▪ The important issues of RTW and Sanitation are as

follows:
• The right to water entitles everyone to
have access to sufficient, safe, acceptable,
physically accessible, and affordable water
for personal and domestic use.
• The right to sanitation entitles everyone to
have physical and affordable access to
sanitation, in all spheres of life, that is safe,
hygienic, secure, and socially and culturally
acceptable and that provides privacy and
ensures dignity.
• Physical presence is not the same as
access. A water or sanitation service does

67
 not serve the whole community if it is too
expensive, unreliable, unhygienic, unsafely
located, unadapted for less able groups or
children, or non gender-segregated, in the
case of toilets and washing facilities.
• All people are entitled to water and
sanitation without
discrimination. Marginalized groups –
women, children, refugees, indigenous
peoples, disabled people and many others –
are often overlooked by, and sometimes
face active discrimination from, those
planning and governing water and
sanitation improvements and services, and
other service users.

▪ RTW has been recognized as a component of RTE

in India through judicial decisions . Some of the
cases are summarized below :

▪ In Charan Lal Sahu v UoI (1990) 1 SCC 613, the SC Commented [h56]: Case challenging the Bhopal Gas Leak
Disaster (Processing of claims) Act, 1985 (the legislation which the
held that , “ In the context of our national GoI had enacted Parens Patriae on behalf of the victims to settle
dimensions of human rights, right to life, liberty, claims of Bhopal disaster
pollution free air and water is guaranteed by the
Constitution under Articles 21, 48A and 5l(g), it is
the duty of the State to take effective steps to
protect the guaranteed constitutional rights.”

▪ In F.K. Hussain v. UoI, (1990 Kerala HC) , the court

held that “At once, the administrative agency
cannot be permitted to function in such a manner
as to make inroads, into the fundamental right
under Article 21. The right to life is much more
than the right to animal existence and its attributes
are many fold, as life itself. A prioritization of
human needs and a new value system has been
recognised in these areas. The right to sweet
water, and the right to free air, are attributes of
the right to life, for, these are the basic elements
which sustain life itself.”

▪ In M.K. Balakrishnan v. Union of India, (2009) 5

SCC 507 & (2009) 5 SCC 511, the SC clearly pointed
out the problem relating to RTW India is facing. It

68
 said “Rivers in India are drying up, groundwater is
being rapidly depleted, and canals are polluted.
Yamuna in Delhi looks like a black drain. Several
perennial rivers like Ganga and Brahmaputra are
rapidly becoming seasonal. Rivers are dying or
declining, and aquifers are getting overpumped.
Industries, hotels, etc. are pumping out
groundwater at an alarming rate, causing sharp
decline in the groundwater levels. Farmers are
having a hard time finding groundwater for their
crops e.g. in Punjab. In many places there are
serpentine queues of exhausted housewives
waiting for hours to fill their buckets of water. In
this connection John Briscoe has authored a
detailed World Bank Report, in which he has
mentioned that despite this alarming situation
there is widespread complacency on the part of the
authorities in India. In our opinion it is science
alone which can solve this problem (as well as the
other gigantic problems facing the country).” Based
on this the court held that “ In our opinion the right
to get water is a part of the right to life guaranteed
by Article 21 of the Constitution.”
▪ In deciding so the SC reiterated the position of the
Court in Delhi Water Supply & Sewage Disposal
Undertaking v. State of Haryana [(1996) 2 SCC 572]
at para 1 ,which said that “Water is a gift of nature.
Human hand cannot be permitted to convert this
bounty into a curse, an oppression. The primary
use to which water is put being drinking, it would
be mocking nature to force the people who live on
the bank of a river to remain thirsty,…”
▪ The SC also emphasized the position in Chameli
Singh v. State of U.P. [(1996) 2 SCC 549] at para 8
where it was held that “ … Right to live guaranteed
in any civilised society implies the right to
food, water, decent environment, education,
medical care and shelter. These are basic human
rights known to any civilised society. All civil,
political, social and cultural rights enshrined in the
Universal Declaration of Human Rights and
Convention or under the Constitution of India
cannot be exercised without these basic human
rights.”

69
▪

▪ In Perumatty Grama Panchayat v. State of Kerala, Commented [h57]: Against Coco-Cola extracting ground water
…read more on law on ground water @
2004 (1) KLT 731, the Kerala High Court held that https://eprints.soas.ac.uk/23103/1/13-1%20Koonan-
“… it can be safely concluded that the underground Ground%20water%20legal%20regime%20in%20India.pdf
water belongs to the public. The State and its
instrumentalities should act as trustees of this
great wealth. The State has got a duty to protect Commented [h58]: Public Trust Doctrine
ground water against excessive exploitation and
the inaction of the State in this regard will
tantamount to infringement of the right to life of
the people guaranteed under Article 21 of the
Constitution of India. The Apex Court has
repeatedly held that the right to clean air and
unpolluted water forms part of the right to life
under Article 21 of the Constitution. So, even in the Commented [h59]: RTW
absence of any law governing ground water, I am
of the view that the Panchayat and the State are
bound to protect ground water from excessive
exploitation. In other words, the ground water,
under the land of the Hindustan Coca-Cola Ltd ,
does not belong to it. Normally, every land owner
can draw a reasonable amount of water, which is
necessary for his domestic use and also to meet
the agricultural requirements. It is a customary
right. But, here, 510 kilolitres of water is extracted Commented [h60]: Customary right of the land owner to extract
ground water is limited to the reasonable domestic use and
per day, converted into products and transported agricultural uses. The State has a duty to prevent any commercial
away, breaking the natural water cycle. A portion /unreasonable use of the same.
of the rain water is stored as ground water and the
balance flows away. The ground water stored in
normal circumstances is partially depleted by
moderate extraction for domestic and agricultural
purposes and also by evaporation through
vegetation on the surface. Again, when the rains
come, the underground reservoirs called aquifers
get recharged and the cycle goes on. If there is
artificial interference with the ground water
collection by excessive extraction, it is sure to
create ecological imbalance. “

▪ Narmada Bachao Andolan v. Union of India, (2000)

10 SCC 664 at para 223 held that: “Water is one
element without which life cannot sustain.
Therefore, it is to be regarded as one of the

70
 primary duties of the Government to ensure
availability of water to the people.” The Court
emphasized on the fact that while a huge
percentage of the Indian Population is struggling
without drinking water, all the water in river
Narmada is flowing into the sea without benefiting
anyone. In this context the court at para 226 said:
“Dam serves a number of purposes. It stores water,
generates electricity and releases water
throughout the year and at times of scarcity. Its
storage capacity is meant to control floods and the
canal system which emanates there from is meant
to convey and provide water for drinking,
agriculture and industry.” If the construction of the
dam can save water which is a scarce natural
resource and make it available for lakhs of people
in India, that becomes definitely an integral aspect
of Right to life under article 21.

▪ Regarding Right to Sanitation, The Rajastan HC in

LK Koolwal v State of Rajasthan (1986) SCC OnLine
Raj 43 stated that “Maintenance of health,
preservation of the sanitation and environment
falls within the purview of Article 21 of the
Constitution as it adversely affects the life of the
citizen and it amounts to slow poisoning and
reducing the life of the citizen because of the
hazards created, if not checked”

• Procedural Environmental Laws in India

o Principle 10 of Rio Declaration: “Environmental issues are best
handled with participation of all concerned citizens, at the relevant
level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by
public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage
public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided.”
▪ Before Rio 1992 there were no other instruments that
recognised the procedural rights to environment (these three
rights) in the environmental context. But after 1992 almost all
treaties captures the spirit of article 10

71
 ▪ These rights represent true democratisation of environmental
decision making [Environmental Democracy].
▪ “These ‘access rights’ have emerged to be very important in
promoting transparent, inclusive and accountable
environmental governance [ https://www.unep.org/civil-
society-engagement/partnerships/principle-10 ]
▪ Rio + 20 Summit has re-confirmed Principle 10, in its outcome
document, “The Future We Want”, underlining its importance
at the regional level.
▪ Bali Guidelines: In order to catalyze and to accelerate action
in terms of implementing Principle 10, governments adopted
the Guidelines for the Development of National Legislation on
Access to Information, Public Participation and Access to
Justice in Environmental Matters, 2010 ( 11th Special Session
of UNEP’s Governing Council)

o Procedural Environmental Rights in the Indian Law

▪ At the national level these procedural environmental rights
represent ‘a true democratization of environmental decision
making’. [Philippe Cullet, ‘Definition of an Environmental Right
in a Human Rights context’ (1995) 13 Netherlands Quarterly of
Human Rights 25].
▪ Irrespective of the final outcome, procedural environmental
rights could give citizens a sense of empowerment, as they
would have at least some engagement with decisions
affecting them [JC Gellers & Chris Jeffords, ‘Procedural
Environmental Rights and Environmental Justice: Assessing
the impact of Environmental Constitutionalism’ (2015) Human
Rights Institute, University of Connecticut, Economic Rights
Working Paper No 25, 2017]
▪ These rights also bring Govt decisions and actions under public
and judicial scrutiny, thereby increasing transparency and
accountability in governance. These rights also make
environmental justice more accessible, particularly for
disadvantaged and under-served populations who suffer
adverse consequences of poor environmental decision
making. [Shibani Ghosh, Procedural Environmental Rights in
India, Orient Blackswan 2019]

o Right to Information & Environmental Governance

▪ The flow of information can broadly happen in two ways:
• From the proponent of the activity to regulator
• From the Regulator to the proponent of the activity
and also the public

72
▪ These two aspects are further subcategorized by Shibani
Ghosh [Shibani Ghosh, Procedural Environmental Rights in
India, Orient Blackswan 2019]:
• Disclosure of information relating to environmental
impacts of activities to regulatory authorities by those
undertaking such activities (for example disclosure
requirements under EIA Notification)
• Disclosure of Information relating to regulatory
decisions and decision-making processes affecting the
environment by the concerned regulatory authority
[for example Water Act S 25(6) ; Air Act s 51;
Environment (Protection Rules 1986 Rule 5(3)]
• Disclosure of information relating to specific processes
and potential risks at workplaces for the benefit of
employees as well as communities in close proximity
[For example Hazardous and other Wastes
(Management and Transboundary Movement) Rules
2016 rule 4(6)(b)]
• Disclosure of information to consumers through
labeling of products [Hazardous and other Wastes
(Management and Transboundary Movement) Rules
2016 rules 17(2) and 18 (2)]
• Disclosure of information by companies of their
sustainability practices [See Ministry of Corporate
Affairs, National Voluntary Guidelines on Social,
Environmental and Economical Responsibilities of
Business, 2011]

▪ Right to Information and Pollution Control Laws

• Water (Prevention and Control of Pollution) Act, 1974
& Air (Prevention and Control of Pollution) Act, 1981
• Both these legislations require regulated entities to
apply for consents to the State Pollution Control
Boards (SPCBs), before commencing operations that
potentially impact the environment [Section 25 (1) of
Water Act / Section 21 (1) of Air Act]. The application
process and conditions for grant of consent require
mandatory disclosure of certain categories of
environment impact information. Compliance with
these consent conditions must be disclosed through an
annual environmental statement.

73
 • These laws also require the maintenance of a register
by SPCBs, available to the public for inspection. The
register is a record of persons to whom consent has
been granted, standards of emission laid down in the
consent and other particulars that are prescribed
[Water Act section 25 (6) and Air Act , Section 51]
• SPCBs are also required to provide copies of relevant
reports on regulated entities to private persons who
may have filed a complaint in court against an alleged
offence [Water Act, S 49(2) & Air Act , S 43(2)]
• Any violation of these consent requirements or any of
the conditions are criminal offences under both laws.
• These information are public, and allows persons,
particularly those affected by pollution of the entity, to
seek legal remedy.
• The SPCBs are required to monitor and enforce the
compliance of the consent conditions . However, lack
of resources, lack of trained personnel, heavy
workload, corruption etc are challenges to the
effectiveness of this system. [CSE, ‘Turnaround:
Reform Agenda for India’s Regulators’ 2009]
• Often SPCBs have refused to provide copies of relevant
documents to private complainants citing ‘Public
Interest’ [See Water Act S 49(2) proviso; Air Act S 43
(2)]. What constitutes ‘Public Interest’ is left to the
SPCBs discretion and no guidance is provided in the
law.
• Similarly, CAG performance audit reports also reveal
that many of the SPCBs are not maintaining registers of
these consent information in accordance with law
[Shibani Ghosh, 2019 citing many CAG reports]
•
▪ Right to Information under the Environmental Impact
Assessment Notifications (will discuss it along with EIA laws)

▪ Right to information under the RTI Act

• Information may be sought from public authorities and
the same has to be provided in a time-bound manner.
The Act also provides for appellant procedures within
the institution and also with the State and Central
commissions.
• Providing information may be exempted as per
grounds provided in the Act (Sections 8, 9).

74
 • G Krishnan v. MoEF (CIC, 2012): The Western Ghats
Ecology Experts Panel (WGEEP) submitted its report to
MoEF. On an RTI application the ministry refused the
information citing it is only a draft. The State
commission also rejected the appeal. CIC while
allowing the information held that “…the disclosure of
WGEEP report would enable citizens to voice their
opinions with the information made available in the
said report…This would facilitate an informed
discussion between the citizens based on a report
prepared with public money. MoEF’s unwillingness to
be transparent is likely to give citizens an impression
that most decisions are taken in furtherance of
corruption resulting in a serious trust deficit”
• UoI v. G Krishnan (2012) SCC Online Del 2869, the Delhi
HC while the CIC order was challenged observed that
“…before the formation of a policy, all the stakeholders
should be able to deal with the report and consider
whether to support or oppose the findings and
recommendations made therein, and the policy should
be eventually formulated after due consideration of all
points of view.”

▪ Right to Public Participation

• “Democracy cannot exist unless all citizens have a right

to participate in the affairs of the polity of the country”
–SC in Ministry of Information and Broadcasting v.
Cricket Association of Bengal (1995) 2 SCC 161.
• ‘Right to life has read to include the right to
community participation for the protection of
environment and human health’ –SC in Research
Foundation for Science and Technology and Natural
Resources Policy v. Union of India (2005) 10 SCC 510.
• Articles 39 (b) & (c) ; 47; 48A would be more
meaningful if relevant stakeholders are consulted.
• It is a duty of every citizen under Article 51 A (g)
• ‘An embodiment of the principles of Natural Justice’ –
S Nandakumar v. The Secretary to Govt of TN Dept of
Environment and Forest (2010) SCC Online Mad 3220.
• “To be proper, consultation must be undertaken at a
time when proposals are still at the formative stage; it
must include sufficient reasons for particular proposals

75
 to allow those consulted to give intelligent
consideration and an intelligent response; adequate
time must be given for this purpose; and the product
of consultation must be taken into account when the
ultimate decision is taken”- SC in Cellular Operators
Association of India v TRAI (2016) 7 SCC 703.
• In India public participation in Environmental decision
making could be traced in EPA; Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006; and EIA Rules. The Pollution
control laws has very limited opportunities for public
participation.
• Arnstein, Sherry R. "A Ladder of Citizen Participation,"
JAIP, Vol. 35, No. 4, July 1969, pp. 216-224 gives the
following forms of participation.

o
• Under the EPA 1986
o ‘Consultation through which the concerns of
local affected persons and others who have
stake in the environmental impacts of a project
or activity are ascertained with a view to taking
into account all the material concerns in the
project or activity design as appropriate’- EIA
Notification Para 7(i) (III)(i)
o This has two components EIA Notification Para
7(i) (III)(ii):

76
 ▪ The public hearing held in proximity to
the proposed project site
▪ Written responses sent by concerned
persons to the authority

o Under the FRA, 2006 [The Scheduled Tribes

and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006]
▪ Decisions relating to access, use and
ownership of forestland and resources
for livelihood needs of STs and different
forest dwelling communities (Rights
include right to hold and live in forest
land, to own and access, use and
dispose minor forest produce,
entitlement to fish, grazing rights etc-
Section 3).
▪ Such rights can be claimed by
individuals and communities (section 3)
▪ The Gram Sabhas (that includes all
adults in a particular village –s 2(g)) are
designated as authorities to initiate the
process of claims – S 6(1)]
▪ Forest clearance under the Forest
(Conservation) Act, 1980 and the
changes after FRA / As per 2014
amendment to FCA, settlement of rights
as per FRA must be completed before
the application of diversion of forest
land is considered.

o Access to Justice/Access to Remedies

▪ Under Constitution of India Articles
32/226
▪ The Procedures under CPC and CrPC (to
be discussed in the class)
▪ The procedures under various
environmental legislation (to be
discussed in the class)

▪ Access to Justice: two broad

approaches of inquiry AND the
challenges

77
 ▪ Access to Justice = Questions about the
QUALITY of Justice delivered. People
get meaningful justice only when
‘JUSTICE’ ( or remedies to their
problem) that they get is equal to their
RIGHTS or what they are entitled
(Human Rights /Constitutional /legal
entitlements ). Related topics are:

▪ Delayed justice (Pendency of

cases/docket explosion in India). Speedy
Justice is a fundamental right in India

▪ Corruption in Judiciary /court system

many times affect the quality of
justice/remedies

▪ Ignorance of law among judges, lawyers

and other stakeholders (the reason for
the same include the lack of quality in
legal education and training in India).
Laws in India are sometimes too
confusing as a result sometimes judges
are ignorant of the applicable laws. They
apply wrong laws which affect the rights
of people . (Per Incurium)

▪ Access to Institutions of Justice:

Questions about various BARRIERS to
Access to Quality/Meaningful Justice -
(Institutions includes not only courts
and police stations but also all
institutions from where the people of
the country are to receive their
entitlements)

▪ Geographical Alienation (population

living in remote parts of the country
need to travel long distances to reach
the institutions of FJS by leaving their
daily wages and family ---this is
particularly true in the case of High
Courts and the Supreme Court which
are situated in major urban locations in

78
 the country. The Geographical
challenges can be tackled in
DECENTRALISING the Justice Delivery
Mechanisms. Some of the mechanisms
of Decentralisation are REFINING &
REVIVING the IJS, building Hybrid
Mechanisms such as Gram Nyayalayas,
use of Mobile Courts in a meaningful
way, or by use of Technology .

▪ Social alienation (Untouchability

/Racial/ Caste / Gender / Modern forms
of slavery and other issues) which very
often lead to economic, educational,
political challenges . This also can be
tackled by building a combination of IJS
+ Hybrid + FJS mechanisms in a
transparent, accessible, decentralised
manner sticking to the fundamental
principle of EQUALITY (Article 14 of the
Constitution).
▪ Economic alienation (Poverty/lack of
enough resources to meaningfully reach
the Institutions/ high cost of litigation –
lawyers fee / Court Fee). This can be
tackled by developing free/reasonably
costly Justice Delivery Mechanisms.
Again the most affective method is to
build a combination of IJS + Hybrid + FJS
mechanisms that recognise Access to
Justice as a Human Right and provide it
for free or for a reasonable cost.
▪ Lack of awareness of law /Technical
language of law /Technicality of law:

▪ Generally amongst the rural people this

problem exists (very particularly
socially, economically, geographically
alienated people face this problem). So
the challenges of Urban-Rural divide is
relevant here.

79
Constitution of India and Environmental Protection

• The majority of the existing environmental law literature currently takes the
problematic stance that ONLY some of the 448 Articles of the Indian Constitution
(which are divided into 22 parts and 12 schedules) have relevance in protecting the
environment. However, the environmental protection agenda must be understood in
the context of sustainable development's overarching goal and the requirements for
incorporating its three pillars into the governance framework. (See the SDGs, which
include 17 goals and 169 targets that essentially cover every facet of current
constitutional and other legal norms.)

• Let’s briefly analyze few aspects of the Preamble to the Constitution

o Preamble to the Constitution

▪ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to
secure to all its citizens:
• JUSTICE, social, economic and political;
• LIBERTY of thought, expression, belief, faith and worship;
• EQUALITY of status and of opportunity;
and to promote among them all
• FRATERNITY assuring the dignity of the individual and the unity
and integrity of the Nation

▪ Sovereignty
• Evaluate:
o the concept of ‘Environmental Sovereignty’
o PSNR is an extension of Sovereignty

• MUST Read:
https://pure.rug.nl/ws/portalfiles/portal/3265510/h8.pdf

• Peter Penz argues that in the context of the many environmental Commented [h61]: Penz, P. (1996). Environmental Victims and
State Sovereignty: A Normative Analysis. Social Justice, 23(4 (66)),
disasters that the world has seen today, protecting people against 41–61. http://www.jstor.org/stable/29766974
becoming environmental victims is the first order of importance in
the world today. However, he asks the question ‘Is this
compatible with the centrality of the principle of state sovereignty
in international relations?’

• Schrijver, Nico J, argues that the sovereign state and the concept Commented [h62]: Schrijver, Nico J. ‘State Sovereignty in the
Planetary Management of Natural Resources’. 1 Jan. 2021 : 13 – 20.
of sovereignty are frequently seen by advocates of global

80
 environmental governance as significant barriers to effective
environmental conservation and sustainable development. Even
the concept of the sovereign state's demise is predicted by some.

• So there are debates happening on the contradictory nature of

state sovereignty and environmental protection agenda. That
being the case, the question is: ‘How do we interpret the
constitutional guaranty of sovereignty of India’?

▪ Socialism:

• Evaluate the concepts:

o Eco-socialism (also known as green socialism, socialist
ecology, ecological materialism, or revolutionary ecology).
Read more @ https://en.wikipedia.org/wiki/Eco-
socialism#:~:text=Eco%2Dsocialists%20generally%20believ
e%20that,repressive%20states%20and%20transnational%
20structures . This Wikipedia page says that Eco-socialists
generally believe that the expansion of
the capitalist system is the cause of social
exclusion, poverty, war and environmental
degradation through globalization and imperialism, under
the supervision of repressive states and transnational
structures. Eco-socialism asserts that the capitalist
economic system is fundamentally incompatible with the
ecological and social requirements of sustainability. Thus,
according to this analysis, giving economic priority to the
fulfillment of human needs while staying within ecological
limits, as sustainable development demands, is in conflict
with the structural workings of capitalism. By this logic,
market-based solutions to ecological crises (such
as environmental economics and green economy) are
rejected as technical tweaks that do not confront
capitalism's structural failures. Eco-socialists advocate for
the succession of capitalism by eco-socialism—
an egalitarian economic/political/social structure designed
to harmonize human society with non-human ecology and
to fulfill human needs—as the only sufficient solution to
the present-day ecological crisis, and hence the only path
towards sustainability.
Commented [h63]: De Shalit, Avner. (2000). Socialism and the
o Avener D Shalit says that there is evidence that democracy Environment. 10.1093/0199240388.003.0007. available at
https://www.researchgate.net/publication/300270427_Socialism_a
alone cannot ensure policies that are good for the nd_the_Environment

81
 environment, despite the fact that many theorists support
democracy as a way to protect the environment. He asks:
which of the various modern economic structures—
including private vs. public ownership, a decentralized vs.
free market, a centrally planned vs. a centrally organized
production—is most likely to protect the environment? He
answers: democratic socialism is the most environmentally
friendly system.

o These arguments may be evaluated in the context of

Socialism as a constitutional objective of the Indian
republic & its relation to environmental protection.
▪ Secularism:
▪
• Evaluate the following arguments:
o Environmentalism, apart from being a political movement,
is also a secular Faith. Also read Zagonari, who argues Commented [h64]: DUNLAP, T. R. (2006).
Environmentalism, a Secular Faith. Environmental
that religious and secular ethics offer complementary Values, 15(3), 321–330. http://www.jstor.org/stable/30302163
strategies to achieve environmental sustainability. Commented [h65]: Zagonari, F. Religious and secular ethics
o If that is the case, and by agreeing that India is a secular offer complementary strategies to achieve environmental
sustainability. Humanit Soc Sci Commun 8, 124 (2021).
state, why are we not able to keep our environment clean https://doi.org/10.1057/s41599-021-00802-0. Available at
and safe? https://www.nature.com/articles/s41599-021-00802-0

o Based on this preliminary evaluation (with limited review of literature) the

hypothesis is that every article /every principle, concepts, norms in the
constitution of India is relevant for evaluating the goal of sustainable
development. This hypothesis may be proved/disproved by the students
through their research

• We discussed numerous cases that were decided by the SC and HCs in the part that
came before this one [Right to Environment (RTE) and Right of Environment (ROE) as
two positions of substantive environmental rights in India]. The following articles of
the Constitution are frequently cited by judges when developing the RTE or ROE:
o Article 14
o Article 19(1)(a)
o Article 21 Commented [h66]: Part III FR
o
o Article 48A Commented [h67]: Part IV DPSP
o
o Article 51A(g) Commented [h68]: Part IVA -FD

▪ Article 14 says “Equality before law : The State shall not deny to any
person equality before the law or the equal protection of the laws within

82
the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth”-- Evaluate the following points:
• Equality (or absence of that) in cases distribution of
environmental resources and environmental harms :
o Distributive Justice principle may include the following
questions:
▪ What is to be distributed? (Such as income, wealth,
opportunities, jobs, welfare, utility, natural
resources etc.) Commented [h69]: Various biotic -non-human life forms and
biotic elements of the Universe: Such as water, air, minerals, etc.
▪ What is the nature of the recipients of the
distribution? (Including individual persons, groups
of persons, non-human persons, tribal & Commented [h70]: Eco-Centricism
indigenous population, future generation, for- Commented [h71]: Tribal rights to natural resources/self
determination
profit-corporations etc.);
▪ On what basis the distribution should be made? Commented [h72]: Inter-Generational Equity & Intra-
Generational equity
(Equally-egalitarian, freely, based on the
requirement, based on efforts, based on social-
economic-physical disability etc.)

o Equality in Distribution of Environmental Resources:

Considering the fact that environmental resources are
scarce and there are more demands than the supply,
distribution of these resources by adhering to the
principles of Article 14 is a challenge. This can be
evaluated in the current divide in the allocation of natural
resources and the challenges associated with bridging
those gaps. As an example consider the issues in Narmada
Bachao Andolan case and the rights of people under article
14. This may also be evaluated on the methods of
allocation of Natural Resources. Refer to the case In Re
Natural Resources case (discussed earlier). For more
details refer to cases relating to RTE/ROE discussed earlier.
Commented [h73]: most of them non-renewable /in most cases
polluted environment cannot be restored back/ and in most cases
the economic value of those resources cannot be calculated
Commented [h74]: water for drinking, domestic purposes,
irrigation etc
Commented [h75]: stakeholders here includes:
People who would benefit from the dam: (1) people who are not
having sufficient water for drinking, sanitation ; (2) for agriculture (3)
for industries
People who would NOT benefit from the dam would include
tribals/rural people/non human persons who would be losing their
land and should be relocated.

o Equality in Distribution of Environmental

Harm/Externalities: We have discussed about ecological
shadow of environmental harm earlier in this notes. The
question is how are the harm/externalities (both
anthropogenic & also natural ones) can be fairly
distributed among the haves and have nots / among Commented [h76]: A connected question (which according to
me is redundant ) is WHY SHOULD THE HARM BE DISTRIBUTED AT
persons considering the various factors such as geo- ALL?
political, economical, racial, gender etc. differences.

o The reasoning of the Indian judiciary in applying article 14

to environmental disputes has been these two logics.

83
 o Another emerging philosophical approach is about
extending the principle of distributive justice (which is
traditionally evaluated within the political boundaries of a
sovereign state) to the global arena (which may be called
as global distributive justice). The principles of PSNR & the
connected aspects of Non-Interference and Self
Determination are about distribution of environmental
resources within the country. However since Trail smelter
the requirement of distribution of Harm within the within
and outside the country is being debated. The discussions
on distribution of harm has been at the cornerstone of the
existing international environmental law. However the
debate on the need of distributing the resources are still
seen as interference with sovereignty of the State. For
example see the structure of Annexed and Non-annexed
countries in the UNFCCC and the differentiated
responsibilities. As part of differentiated responsibilities
annexed countries are to provide financial assistance and
transfer technology to non-annexed countries. However
this requirement has failed.
o

▪ Article 19(1)(a) –Freedom of Speech and Expression and the procedural

right to environmental information. (discussed earlier )

▪ Article 21 – Reasoning of Indian judiciary until now are:

• The Indian judiciary have used separate reasoning for

recognizing RTE and ROE

o RTE – Question-Whose life? –Answer- Life of Human

Beings. Quality environment or any of the components of
the environment enables the human beings to make their
life better than ‘mere animal existence’ . Hence Human
Beings have a Right to Environment. Here the term
‘Person’ in article 21 includes only Human Beings (natural
persons) and not any other types of ‘Legal Persons’ Commented [h77]: In Platchimada Gram Panchayat case,
Hindustan CocaCola ltd has no right to exploit ground water as it is
for commercial purposes. RTW is limited to uses of drinking,
o RTE- Also see the different trends of judicial reasoning in sanitation, domestic uses and reasonable agricultural uses..
recognizing RTE in India discussed in the substantive
environmental rights part (discussed earlier in this Notes)

84
 o ROE – Question- Whose Life? –Answer- Life of all biotic
and abiotic elements without any preference to human
beings. So the term ‘Life’ under article 21 would include
Life of animals also. By recognizing the intrinsic value of
non-human entities, the term ‘Person’ would include
animals [Godavarman case (2012); Jellikkettu case(2014)]
and also rivers and glaciers etc. [Mohmd Salim (2017); Lalit
Miglani (2017)].
Commented [h78]: Juristic personhood has been given to Hindu
idols much earlier. Read pramatha nath mullick v. pradyumna kumar
mullick (1925) . But they do not have fundamental rights . read
Indian Young Lawyers Association v State of Kerala (sabarimala case)
(2018) . but in ROE cases cited here FR were available to the
persons. The logic of reading personhood in idols is quite different
from ROE approaches.

• Surprisingly in A.P. Pollution Control Board vs Prof.M.V.Nayudu

(1999) 2 SCC 718 the court had stated while environmental
aspects concern `life', human rights aspects concern `liberty'.
However this position appears to be problematic as both
environmental degradation and violation of HR affects both Life
and Liberty. Rights and Liberty are closely connected with each
other and court should have avoided making such lose
statements.

▪ Article 48A : “Protection and improvement of environment and

safeguarding of forests and wild life The State shall endeavour to
protect and improve the environment and to safeguard the forests and
wild life of the country”
• The relevance of DPSP in general and that of Article 48A in
particular in protecting the environment should be evaluated on
the basis of the following points:

o The nature of relationship between FR and DPSP has been

subject to dynamic interpretation by the Indian judiciary.
Starting from Golak Nath v the State of Punjab
(Fundamental rights cannot be diluted, abridged,
diminished etc. ); -------- through Champakam Dorairajan
v. State of Madras (DPSP cannot override FR) ; -------
through In Re Kerala Education Bill (Doctrine of
Harmonious Construction); ---------through Kesavananda
Bharathi v. State of Kerala (Basic structure ) ; -------
through 42nd Amendment of the Indian Constitution giving
predominance to DPSP over FR; ------through Pathumma v.
State of Kerala (emphasise on the purpose of DPSP to fix
some social- economic goals ------- through Minerva Mills
Case (reversing the impact of 42nd amendment act on FR
and DPSP); ---------through State of Kerala v. N.M.Thomas
(FR and DPSP should be built in such a way to be with each
other and every effort should be taken by the court to
resolve the dispute between them); ------- through Olga

85
 Tellis ( DPSP are fundamental in the governance of the
country as FR); ------through Dalmia Cement v. Union of
India (FR and DPSP are supplementary and
complementary to each other) ; ------through Ashok Kumar
Thakur v. UoI (no difference can be made between FR and
DPSP- one is Civil and political rights that are enforceable
and other economic, social rights that are not enforceable
but of equal importance). So the relation between Article
48A and Articles 14, 19(1)(a), 21 etc. should be evaluated
in the context of this changing relationship between Part
III and Part IV.

o The reasoning that the Courts in India on Article 48A:

When RTE/ROE is read into Article 21, the corresponding
duty of the state is read into Article 48A. The right to life
(which is primarily negative), which is read into articles 21
and 48 A, has been interpreted by the judiciary as
imposing both positive and negative duties on the state to
Protect, Respect, and Fulfill the RTE. Cases emphasizing Commented [h79]: Respect, Protect, Fulfil Framework: The
obligation to Respect means that states must refrain from interfering
this reasoning are given in the earlier part of this Notes in with or limiting the enjoyment of human rights. It is also described
the backdrop of RTE/ROE as a negative obligation, as the state has to abstain from violating
human rights. The other two obligations include positive duties,
which mean that the state has to take action to deliver rights.
o Article 48A was introduced in the Constitution after the The obligation to Protect requires states to interfere in order to
protect individuals and groups against human rights abuses by
Stockholm Conference, in which Smt Gandhi made the others, in particular private actors. The obligation to fulfil means
famous speech on poverty, lack of means and that states must take positive measures to facilitate the enjoyment
of human rights.
environmental protection. Probably this amendment was a
result of the ‘Stockholm Wave of Environmental
Conscience’

▪ Article 51A(g): Article 51A. Fundamental duties It shall be the duty of

every citizen of India:------(g) to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures.

• While recognising RTE, the court in Virender Gaur v. State of

Haryana (1995) 2 SCC 577 placed special emphasis on Article
51Ag, which places a fundamental duty on citizens to protect the
environment. I believe that it is problematic to link the RTE to the
fundamental duty of citizens under 51Ag . It is because Article 21
uses 'Persons' and Article 51A(g) uses 'Citizens'.
• Agree that all Rights have corresponding duty and I would argue
that Right to Environment has the following corresponding Duties.

86
 o Under 48A – Duty of the State (positive in nature) but
Non-Justiciable.

o Under 51A(g) – Duty of the CITIZENS of India to protect

and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for
living creatures. But the question is who has the
corresponding Rights. It could be with
▪ Fellow Citizens
▪ The State
▪ Non-Human Persons (borrowing the concept of
ROE logic)
▪ Persons living in India & Persons living abroad
(recollect our discussion on who are Neighbours in
the context of No Harm principle)

o Under 21 itself- Based on Hohfeldian argument that every

Right must have a corresponding Duty. So RTE , a negative
right of the persons derived from Article 21, casts a
negative duty (of non interference) on the State to Respect Commented [h80]: Respect, Protect, Fulfill Framwork
the same.

o Under Article 21 read with Article 48A: The Duty to

Respect, Protect and Fulfill of the State derives based on
the combined reading of Articles 21 and 48A. A
meaningful interpretation of RTE can be arrived only with
a joining reading of articles 21 + 48A

o As discussed earlier , the right to life (which is primarily

negative), which is read into articles 21 and 48 A, has been
interpreted by the judiciary as imposing both positive and
negative duties on the state to Protect, Respect, and Fulfill
the RTE. Cases emphasizing this reasoning are given in the
earlier part of this Notes in the backdrop of RTE.

▪ Note that Articles 48A & 51Ag was added in the Constitution through the
42nd Amendment Act, 1976 (during the time of emergency declared by
the then President of India Mr Fakhrudhin Ali on the advice of Smt
Gandhi. The 42nd amendment gave primacy to the Directive Principles,
by stating that “no law implementing any of the Directive Principles could
be declared unconstitutional on the grounds that it violated any of the
Fundamental Rights”. The inclusion of the Fundamental Duty chapter

87
 must be understood in the context of the diminished importance to
Fundamental rights.

• ENVIRONMENTAL FEDERALISM:

o Horizontal Federalism: Power is shared among different organs of government

such as – legislature , executive and judiciary (and also other Fourth pillar
institutions such as Media; Comptroller and Auditor General of India (CAG);
Information Commission; and Election Commission)

o Vertical Federalism: Power is shared among different levels of government such

as Union, State and local government.

• Horizontal Federalism:
o Executive Branch [Part V-Union, Chapter 1 & Part VI –States, Chapter II]
▪ Policy Formulation is essentially the function of the Executive Branch of
the Government when compared to other Branches. For example all Commented [h81]: Read more at
https://egyankosh.ac.in/bitstream/123456789/19335/1/Unit-7.pdf .
major policy documents regarding the environment and various aspects (Specifically part 7.3 of the document)
of the same, such as National Conservation Strategy and Policy Statement
on Environment and Development, 1992; Policy Statement for the
Abatement of Pollution, 1992; National Environment Policy, 2006 etc..are
made by the Political Executive of the Country consisting of the Prime
Minister of India, the Cabinet, the Cabinet Secretariat etc. The function of
the legislature is to approve/disapprove (with or without changes) those
policies when they are presented as Bills. However in India the idea of
‘Judicial Activism’ and the tool of PILs have enabled the Judiciary to
interfere in the policy making function of the executive by alleging
inaction on the part of the legislature and executive. This has happened
particularly in the case of environmental policy making.

▪ Treaty Making as the Function of the Union Executive: See the following
para from the National Commission to Review the Working of the
Constitution Consultation Paper on TREATY-Making Power under our
Constitution:
• At para 5 it reads: “…treaty making is not within the exclusive
competence of the Executive. It is squarely placed within the
legislative competence of the Parliament. By virtue of Article 73 of
the Constitution, however, the Executive power of the Union
extends, in the absence of parliamentary legislation, to the
matters with respect to which the Parliament has power to make
laws …. It is well known that the Parliament has not so far made
any law regulating the procedure concerning the entering into
treaties and agreements nor with respect to their

88
 implementation. Equally clearly, no law has been made regulating
the manner in which the Government shall sign or ratify the
international conventions and covenants. The resulting situation,
unfortunately, is that it is left totally to the Executive to not only
enter into treaties and agreements but also to decide the manner
in which they should be implemented, except where such
implementation requires making of a law by Parliament. And the
fact of the matter is that once the Executive Government enters
into a treaty, it would be, ordinarily speaking, quite embarrassing
for the Parliament to reject the treaty….”. Read more @
https://legalaffairs.gov.in/sites/default/files/Treaty-
making%20power%20under%20our%20Constitution.pdf . This
treaty making power of the executive have resulted in India
signing/adopting numerous conventions, agreements,
declarations, resolutions that are directly/indirectly connected to
environmental protection. A study of this role of the executive
and the relevance of the treaties signed by India is much relevant
considering the judicial reasoning in building the contemporary
environmental jurisprudence in India.

▪ Role of Legislature: discussed in the Vertical Federalism part.

▪ Role of Judiciary: Discussed earlier in the notes

▪ Role of 4th Branch Institutions:

• The Comptroller and Auditor General of India (CAG) is the

Supreme Audit Institution of India, established under Article 148
of the Constitution of India. They are empowered
to audit all receipts and expenditure of the Government of
India and the State Governments, including those of autonomous
bodies and corporations substantially financed by the
Government. The CAG is also the statutory auditor of Government
-owned corporations and conducts supplementary audit of
government companies in which the Government has an equity
share of at least 51 percent or subsidiary companies of existing
government companies. The reports of the CAG are laid before
the Parliament/Legislatures and are being taken up for discussion
by the Public Accounts Committees (PACs) and Committees on Commented [h82]: An environmental Audit provides an
assessment of the environmental performance of a business or
Public Undertakings (COPUs), which are special committees in organization. The audit reveals details about the activities of a
the Parliament of India and the state legislatures. company and its compliance with environmental regulations. Audit
information is presented to the management team and employees.
o Environmental Auditing by the CAG: The CAG has been An environmental audit evaluates and quantifies the environmental
aware of the need and the relevance of Environmental performance. It identifies compliance problems or management
system implementation issues.
Audit in the context of the increasing concerns about

89
 global warming and climate change, and has already
brought out several incisive and informative reports on the
economy, efficiency and effectiveness of the
environmental programmes and activities initiated by the
Central and State Governments. The Environmental Audits
carried out by the CAG in the past embrace a variety of
issues such as biological diversity including forests and
forest management, pollution control and regulations
relating to air, water etc., waste management and coastal
zone management. Read more @
https://iced.cag.gov.in/wp-
content/uploads/2013/02/Environment-auditing-in-
India.pdf & also at
http://cdn.cseindia.org/userfiles/environmentalauditing.p
df

o In this regard the CAG has published the ‘Environment and

Climate Change Auditing Guidelines’ with a view to
reinforcing the percept and the practice of Environmental
Audit in India in the context of the expanding horizon of
this highly technical and specialized area and the large
number of environment-related issues. The focus of this
Manual is primarily on three main areas of audit, namely,
financial audit, compliance audit, and performance audit
as they apply to environmental issues. The following areas
of environment-related activities have been extensively
covered with the objective of providing detailed guidelines
to plan and conduct their audits:
▪ Biological Diversity including forests and forest
management, wetlands, mangroves etc.
▪ Air Pollution.
▪ Water Pollution.
▪ Waste Management.
▪ Climate Change
▪ Coastal Zone Management
o Accordingly the CAG has conducted many audits in the
past on the above parameters. In 2010 the CAG submitted Commented [h83]: Some of the reports are available at
https://cag.gov.in/en/audit-report/details/27540
an audit report on 2G spectrum to the government, stating
a loss of ₹176,000 crore to the exchequer which lead to lot
of political and legal battles in the country. See for
example Centre for Public Interest Litigation v. UoI (2012)
3 SCC 1 and also In Re Natural Resources Allocation (2012)
o

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 ▪ Election Commission of India: Unlike other institutions the EC has no
direct role in matters of environmental protection and the related issues.
Nevertheless in its bid to conduct eco-friendly elections, the EC has
directed all political parties and their candidates to desist from using
environmentally hazardous publicity materials like plastics and polythene
in the election campaigns. Also, in the backdrop of widespread and
flagrant use of loudspeakers during election canvassing and campaign by
candidates, political parties and their agents, the Election Commission
has prohibited the use loudspeakers at night between 10 pm to 6 am.

▪ Information Commission: We have already discussed about the right to

information as a procedural right in the context of environmental
protection. There are many cases disposed by Information Commission
relating different aspects of environmental protection. For example the
CIC in G Krishnan v. MoEF (CIC, 2012): The Western Ghats Ecology Experts
Panel (WGEEP) submitted its report to MoEF. On an RTI application the
ministry refused the information citing it is only a draft. The State
commission also rejected the appeal. CIC while allowing the information
held that “…the disclosure of WGEEP report would enable citizens to
voice their opinions with the information made available in the said
report…This would facilitate an informed discussion between the citizens
based on a report prepared with public money. MoEF’s unwillingness to
be transparent is likely to give citizens an impression that most decisions
are taken in furtherance of corruption resulting in a serious trust deficit”

▪ Similarly in another case, noting that suppression of an expert committee

report regarding India’s coastal areas gives rise to many “suspicions", the
Central Information Commission (CIC) asked the MoEFCC to make the
report and the action taken on it public within a month. Read more@
https://www.livemint.com/Politics/HdbiUrRZKAp4WvMBXH0XAJ/CIC-
asks-green-ministry-to-make-coastal-area-expert-panel-re.html

• Vertical Federalism
o India has a federal system of government, but it leans more towards a unitary
one. Given that it has elements of both a federal and a unitary system, it is
occasionally referred to as a quasi-federal system. It proposes governments at
two levels – the centre and states and the division of powers between the centre
and states – there are three lists given in the Seventh Schedule of the
Constitution which gives the subjects each level has jurisdiction in three lists viz.
▪ Union List
▪ State List
▪ Concurrent List

o The relevant articles of the Constitution in this regard are:

91
 ▪ Article 246 – Legislative Powers of the Union and the States
1. the Parliament has exclusive power to make laws with respect to
entries in List I –Union List of the Seventh Schedule
2. The Parliament also have power to make laws with respect to any
of the matters enumerated in List III –Concurrent List in the
Seventh Schedule along with State legislatures
3. the Legislature of any State has exclusive power to make laws for
such State on entries in List II –State List in the Seventh Schedule.

▪ As discussed earlier all entries in the Schedule 7 are relevant for achieving
environmental sustainability and have relevance either directly or
indirectly. However some provisions are more relevant and they are
given below:

List I- Union List List II—State List List III—Concurrent List

6. Atomic energy/atomic mineral resources 6. Public health 17. Prevention of cruelty
and sanitation to animals.
10. Foreign affairs 14. Agriculture 17A. Forests. Commented [h84]: Moved from State List through 42nd
amendment
12. United Nations Organisation 17. Water 17B. Wild animals/birds.
Commented [h85]: Moved from State List through 42nd
13. Participation in international 18. Land 35. Mechanically amendment
conferences, associations and other bodies propelled vehicles
14. Entering into/implementing treaties 21. Fisheries 36. Factories.
and agreements
27. Ports 37. Boilers.
29. Airways 38. Electricity.
53. Oilfields/mineral oil 42.Acquisition/requisition
resources/petroleum/petroleum products; of property
54. mines and mineral development
56. inter-State rivers and river valleys
57. Fishing and fisheries beyond territorial
waters

▪ Article 248 -- Residuary powers of legislation :

• the Parliament has exclusive power to make law on entries that
are not enumerated in any of the three lists

• Environment OR Environmental Protection (for example) is not

enumerated in any of the three lists. So based on Article 248 the
Parliament has the power to legislate on
Environment/Environmental Protection. The Environmental
Protection Act, 1986 is a central legislation enacted by the
Parliament based on the power derived from Article 248.

92
 ▪ Article 249 - Power of Parliament to legislate with respect to a matter in
the State List in the national interest
• If the Rajya Sabha passes a resolution with a 2/3 majority (of
members present & voting) that it is in the national interest for
Parliament to enact legislation on any entry in the State List,
Parliament may do so.

• Example includes:
o Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 Commented [h86]: Repealing the Land Acquisition Act, 1894

▪ Article 252 --Power of Parliament to legislate for two or more States by

consent and adoption of such legislation by any other State.
• If the legislatures of two or more states resoves that the
Parliament should legislate on a subject for which it does not have
the authority to do so, it shall be permissible for the Parliament to
enact laws on such subjects.

• Deriving powers from this article the Parliament of India has

passed, for example, the following legislations:
o The Wild Life (Protection) Act, 1972
o The Water (Prevention and Control of Pollution) Act, 1974
▪ Article 253 - Legislation for giving effect to international agreements:
Commented [h87]: However Wild Life was moved from State
List to Concurrent List in the year 1976 through 42nd Amendment
Act. Note that this legislation was enacted in the year 1972 before
the 42nd amendment of the Constitution.

• The Parliament can only pass laws that put into effect bilateral or
multilateral treaties, agreements, and conventions, as well as
decisions made at international conferences, associations, and
other bodies.

• Examples for legislations under this article would include

Treaties/Commitments Corresponding Indian law

UN Convention on Biological Diversity signed
along with Rio Conference, 1992
Stockholm 1972 commitments
Stockholm 1972 commitments
Commitments at Stockholm, 1972 & Rio 1992
•
Biological Diversity Act, 2002
Environment Protection Act, 1986
Air (Prevention and Control of Pollution)
Act, 1981
National Green Tribunal Act, 2010

93
▪ Article 262 -Adjudication of disputes relating to waters of inter-State
rivers or river valleys
• Parliament can make a law to settle any disagreement or
complaint about how the water in an interstate river or river
valley is used, shared, or controlled.

• Based on this article, the Interstate River Water Disputes Act,

1956 was enacted by the Parliament. Commented [h88]: For easy reference see
https://www.drishtiias.com/to-the-points/Paper2/inter-state-river-
water-sharing-disputes
• India has 25 major river basins, with most rivers flowing across
states. As river basins are shared resources, a coordinated
approach between the states, with adequate involvement of the
Centre, is necessary for the preservation, equitable distribution
and sustainable utilization of river water. However, interstate
rivers in India have become sites of contestations, fuelled by
conflicting perceptions of property rights, flawed economic
instruments for food security, the lack of an integrated
ecosystems approach, and the prevalence of reductionist
hydrology for water resource development. Such conflicts over
the possession and control of river water have persisted since the
inception of the Indian republic, with prolonged delays in
resolution due to historical, institutional and political factors. In
recent years, increasing water scarcity, a rapid rise in urban and
rural demands for freshwater, and contentious political dynamics
have further exacerbated the problem. Thoiugh the Interstate
River Water Disputes Act, 1956 provides for a mechanism for
resolving such disputes, there are three fundamental structural
ambiguities that currently affect the system: federal-
jurisdictional, historico-geographical, and institutional. The
governance of interstate rivers is mired in conflict for two
constitutional reasons at the core of hostile hydro-politics at the
subnational level: conflictual federalism, and the ambiguity Commented [h89]: The Schedule VII of the Indian Constitution
confers power on the states to decide on the use of water for
around dispute resolution. Read more @ ayanangshu Modak and various purposes like water supply, irrigation and canals, drainage
Ambar Kumar Ghosh, “Federalism and Interstate River Water and embankments, water storage and water power (Entry 17 of List
II – State List), subject to the provisions of Entry 56 of List I.
Governance in India,” ORF Occasional Paper No. 294, January Interestingly, desite the fact that ‘interstate water’ has been
2021, Observer Research Foundation. explicitly mentioned in the Union List, there is no such
acknowledgement in the State List. This allows the states to
delineate the “user rights” over waters in ways deemed best by
• You may also listen to this lecture by Mr Mohan Katarki, Senior them. To avoid controversies arising from such ambiguities, the
Union Government has generally avoided any proactive approach
Advocate, The Supreme Court of India who was the Counsel in towards basin-level governance in practice, and has confined its role
many of such disputes in setting up Tribunals under exigencies of interstate water disputes.
This creates a situation of interstate water conflicts: a phenomenon
described as “conflictutal federalism”. Read more @
https://www.orfonline.org/expert-speak/three-stressors-of-inter-
state-water-conflicts-in-india
▪ Article 297: Things of value within the territorial waters or continental
shelf and resources of the exclusive economic zone to vest in the Union.

94
 • All lands, minerals, and other things of value underlying the ocean
within the territorial waters, or the continental shelf, or the
exclusive economic zone, of India shall vest in the Union and be
held for the purposes of the Union.
• All other resources of the exclusive economic zone of India shall
also vest in the Union and be held for the purposes of the Union.

• Based on this Article, The Territorial Waters, Continental Shelf,

Exclusive Economic Zone and other Maritime Zones Act, 1976 was
enacted on the lines with the United Nations Convention on the
Law of the Sea (UNCLOS), 1982.
• The terms (a) Territorial Waters, (b) Continental Shelf, (c)
Exclusive Economic Zone, and (d) Contiguous Zone are defined in
the Act and the nature of Sovereign rights of the Union in each of
these zone is identified in the Act.
• The Same is illustrated through the following image (courtesy
Commented [h90]: For easy reference read
https://www.drishtiias.com/daily-updates/daily-news-
analysis/unclos-maritime-zones
Commented [h91]: One Nautical Mile is 1.852 Kilometres.
TSB = Territorial Sea Baseline
Isobath: an imaginary line on a map or chart that connects all points
having the same depth below a water surface (as of an ocean, sea,
or lake)

https://thewire.in/diplomacy/maritime-territory-continental-
shelf-unclos-india )

•
•

95
• Panchayats and Municipalities

o Subsidiarity Principle (Decentralization) says that administrative tasks Commented [h92]: Race to the Bottom Hypothesis is a criticism
should be done at the lowest level of government and should only be given
to higher levels of government when they can't be done at the lower level.
The principle, from a common sense perspective, lays down that “decisions
should be taken at the level closest to the ordinary citizen and that action
taken by the upper echelons of the body politic should be limited.” Read Commented [h93]: Environmental spill over or ecological
shadow is a criticism
more @ European Commission, 1992. Communication on the Principle of
Subsidiarity, Brussels: Principle Bulletin EC 10- 1992. Modeling this Principle
the Constitution 73rd Amendment Act introduced the three tiers Panhayat
System in India.

o National Environment Policy, 2006, sets forth the Principle of

Decentralization: It says , “…ceding or transfer of power from a Central
authority to state or local authorities, in order to empower public authorities
having jurisdiction at the spatial level at which particular environmental
issues are salient, to address these issues”.

o The 73rd Amendment 1992 added new Parts IX & IXA to the constitution
titled “The Panchayats” and “The Municipalities” , respectively, covering
provisions from Article 243 to 243(O) & 243(P) to 243ZG and a new Eleventh
Schedule covering 29 subjects within the functions of the Panchayats and
Municipalities.

o Gram Sabha in the Panchayat System: Gram Sabha is a body consisting of all Commented [h94]: However the Grama Sabhas are not advisory
institutions in the case of Scheduled areas.
the persons registered in the electoral rolls relating to a village comprised
within the area of Panchayat at the village level. Since all the persons
registered in electoral rolls are members of Gram Sabha, there are no elected
representatives. Further, Gram Sabha is the only permanent unit in
Panchayati Raj system and not constituted for a particular period. Although it
serves as foundation of the Panchayati Raj, yet it is not among the three tiers
of the same. The powers and functions of Gram Sabha are fixed by state
legislature by law.

o Three Tiers of Panchayati Raj: Part IX provides for a 3 tier Panchayat system,
which would be constituted in every state at the village level, intermediate
level and district level. This provision brought the uniformity in the
Panchayati Raj structure in India.

o Article 243ZD. Committee for district planning.—(1) There shall be

constituted in every State at the district level a District Planning Committee
to consolidate the plans prepared by the Panchayats and the Municipalities

96
 in the district and to prepare a draft development plan for the district as a
whole. (3) Every District Planning Committee shall, in preparing the draft
development plan,— (a) have regard to— (i) matters of common interest
between the Panchayats and the Municipalities including spatial planning,
sharing of water and other physical and natural resources, the integrated
development of infrastructure and environmental conservation.

o As required by the Constitution the States and UTs have enacted Panchayati
Raj legislations in their respective jurisdiction. See
https://www.panchayat.gov.in/whats-new-content/-
/asset_publisher/4ySMdMHjzIhP/content/current-panchayati-raj-act . Under
most of these legislations extensive powers have been given in the aspects of
environmental protection and other related aspects such as cleanliness,
environmental protection, pollution control, water conservation etc.

o Article 243(M): However, the application the Panchayati Raj system was
restricted to the scheduled and tribal areas under under article 244. Article
244 (Administration of Scheduled Areas and tribal areas) the provisions of
the Fifth Schedule shall apply to the administration and control of the
Scheduled Areas and Scheduled Tribes in any State other than the States of
Assam, Meghalaya, Tripura and Mizoram. (2) The provisions of the Sixth
Schedule shall apply to the administration of the tribal areas in the States of
Assam, Meghalaya, Tripura and Mizoram. Commented [h95]: Read 5th and 6th Schedules of the
Constitution of India.

o The logic of the Scheduled Areas is that, during the pre-colonial India’s
Adivasi community had their own governance and legal system. However,
this system was disturbed during the colonial period and after independence
to a great extent. In these traditional systems, the decision-making
procedures were people-centered and democratic. It is also essential to note
that these tribal governance systems were not hierarchical (unlike the caste
based governance structure in rest of India). Every tribal village had a village
council as the fundamental governing body. These forums were once the
decision-making bodies for all administrative, legislative, and judicial matters.
▪ The administrative matters concerned the upkeep of village commons
(including lands, forests, and bodies of water), the division of labour,
agricultural activities, religious events and festivals, etc.
▪ The parliamentary issues involved the enforcement and
interpretation of norms, unwritten laws, and traditional values.
▪ The judicial matters involved dispute resolution, disciplinary actions,
etc., and were guided by unwritten norms and values.

o The Panchayat Extension to Scheduled Areas (PESA) Act of 1996 was

enacted to guarantee tribal self-government for tribal people residing in
scheduled areas in order to revitalise these governance systems. Contrary to

97
 the advisory function of Gram Sabhas in the Panchayati Raj System, the PESA
granted Gram Sabhas absolute authority.
▪ Gram Sabhas have the right to mandatory consultation in land
acquisition, resettlement, and rehabilitation of displaced individuals,
among other powers and responsibilities.
▪ Protection of traditional beliefs, the culture of the tribal communities
▪ Ownership of minor forest products
▪ Resolution of the local disputes
▪ Prevention of land alienation
▪ Management of village markets
▪ Right to control production, distillation, and prohibition of liquor
▪ Exercise of control over money-lending
▪ Any other rights involving the Scheduled Tribes.

o Samatha v State of Andhra Pradesh (1997 Supreme Court), a writ petition

was filed by Samatha, a social action group working for the rights of tribals in
the High Court of Andhra Pradesh in 1993 stating that the government does
not have the power to grant lease in a scheduled area to non tribals for
mining purpose. The A.P. High Court dismissed the writ petition. Then a
Special Leave Petition was filed before the Supreme Court where by full
bench judgement Court decided in favour of the tribals and held that
Government lands, forest lands and tribal lands in the scheduled area cannot
be leased out to non tribals or to private industries. Mining activity in
scheduled area can be taken up only by Andhra Pradesh State Mineral
Development Corporation or a cooperative of tribals and that too if they are
in compliance with the Forest (Conservation) Act 1980 and the Environment
(Protection) Act 1986. The Court recognised the 73rd Constitution
Amendment Act and the Andhra Pradesh Panchayat Raj (Extension to
Scheduled Areas) Act by stating that the Gram Sabhas shall be competent to
safeguard and preserve community resources and thereby reiterated the
need to give the right of self governance to tribals. The Court opined that
since the Executive is enjoined to protect social, economic and educational
interests of the tribals, when the state leases out the lands in the scheduled
areas to the non tribals or industries for exploitation of mineral resource, it
transmits the above correlative constitutional duties and obligation to those
who undertake to exploit the natural resources. The Court directed, that at
least 20% of the net profits should be set apart as a permanent fund as part
of industrial/business activity for establishment and maintenance of water
resources, schools, hospitals, sanitation and transport facilities by laying
roads, etc. This 20% allocation would not include the expenditure for
reforestation and maintenance of the ecology.

o MoEF v. Orissa Mining Corporation (2013 Supreme Court) The Vedanta Case
involves a proposal to construct an open-pit bauxite mine in the Niyamgiri

98
 Hills of Orissa. According to the Ministry of the Environment, the project
would have a significant impact on the environment and the local
communities, destroying an important habitat for wildlife and endangering
the traditional way of life of the Dongria Kondh tribe, for whom these
mountains are sacred. The Dongaria Kondhs trace their ancestry to
Niyamraja, a legendary god-king who is believed to have created the
Niyamgiri hill range and entrusted his descendants with its care. The
Niyamgiri range of hills is believed to be the 115-square-kilometre-large
mythical kingdom of Niyamraja. Niyamraja is believed to be the leader of the
gods residing on the small hills. Each hill in the Niyamgiri mountain range
represented one of these gods. Vedanta Resources is a UK-based mining
company with direct or indirect operations in India. On the basis of an
agreement between Vedanta and the Orissa Mining Corporation Limited
(OMC), a company owned by the State of Orissa, Vedanta prepared the
project to open the mine. The MoEF commissioned an investigation into the
impact of the project on the local tribes and wildlife, and in August 2010 a
negative report was issued. According to the report, the Ministry denied the
project's approval on the grounds that it violated several forest conservation
and environmental protection regulations. In April 2011, OMC filed a petition
with the Supreme Court of India regarding this decision. Under the Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006, and PESA 1996, the Supreme Court of India ruled that the Gram
Sabha has the final authority to determine if a proposed project would affect
individual or community rights, including cultural and religious rights. The SC
held at this issue of “rights of worship over the Niyamgiri hills” of the
Dongaria Kond and Kutia Kandha tribal people; and dangers involved in the
“proposed mining would in any way affect the abode of Niyam-Raja” has to
be decided by the Gram Sabhas. If the Gram Sabhas decide that Mining
would affect their religious rights that right has to be preserved and
protected. Accordingly meetings of all twelve Gram Sabhas in the area were
held and all of them unanimously decided against mining in their territory.

• Read more on Environmental Federalism

o Nidhi Srivastava et al, Greening the Indian federal system, TERI Discussion Paper
at https://www.teriin.org/eventdocs/files/disc-paper-gfi.pdf
o Sairam Bhat, The Paradox of Environmental Federalism in India available at
https://ceerapub.nls.ac.in/the-paradox-of-environmental-federalism-in-india/
o Also read pages 55-69 of the Book, Environmental Law and Policy in India by
Shyam Divan et al (third Edition)

• Also read on Environmental constitutionalism

o UNEP Judicial Handbook on Environmental Constitutionalism, available at
https://www.unep.org/resources/publication/judicial-handbook-environmental-

99
 constitutionalism#:~:text=Environmental%20constitutionalism%20is%20a%20rel
atively,human%20rights%2C%20and%20environmental%20law.
o Lovleen Bhullar, Environmental Constitutionalism and Duties of Individuals in
India, Journal of Environmental Law, Volume 34, Issue 3, November 2022, Pages
399–418 available at https://academic.oup.com/jel/article/34/3/399/6648946

100
Environmental Protection: Introduction to the laws in India
• This Module has two broad categories of topics analysed
o Common Law Remedies under the law of Torts
▪ Nuisance
▪ Trespass
▪ Negligence
▪ Strict Liability/Absolute Liability
o Remedies under the general Statutes
▪ Provisions regarding Nuisance under the Indian Penal Code and CrPC and
the various remedies
▪ Provisions regarding Nuisance under the CPC and remedies
▪ Indian Easement Act

• Common Law Remedies under the Law of Torts

o In MC Mehta v. Kamal Nath (2000) 6 SCC 213 the court held that environmental Commented [h96]: It is the second case ….In the first 1996 case
though injury was established by applying the Public Trust and
pollution is a civil wrong and is a Tort against the whole community. The Court Polluter Pays principle and a liability to pay compensation was
held that: established, the compensation was not qualntified. The 2000 case is
on quantification of damages.
▪ “Pollution is a civil wrong. By its very nature, it is a Tort committed
against the community as a whole. A person, therefore, who is guilty of
causing pollution has to pay damages for restoration of the environment
and ecology. He has also to pay damages to those who have suffered loss
on account of the act of the offender...In addition to damages aforesaid,
the person guilty of causing pollution can also be held liable to pay
exemplary damages so that it may act as a deterrent for others not to
cause pollution in any manner.”

o Environmental Pollution as Nuisance2: Commented [h97]: For the definition of Pollution refer the
definition of the same in the Water Act, the Air Act and the EP Act

2
THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 Section 2(e) "pollution" means such
contamination of water or such alteration of the physical, chemical or biological properties of water or such
discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether
directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public
health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and
health of animals or plants or of aquatic organisms.
AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 , Section 2(a) “air pollutant” means any solid, liquid
or gaseous substance [(including noise)] present in the atmosphere in such concentration as may be or tend to be
injurious to human beings or other living creatures or plants or property or environment & Section 2 (b) “air
pollution” means the presence in the atmosphere of any air pollutant.
THE ENVIRONMENT (PROTECTION) ACT, 1986: (a) "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;
• (b) "environmental pollutant" means any solid, liquid or gaseous substance present in such
concentration as may be, or tend to be, injurious to environment;
• (c) "environmental pollution" means the presence in the environment of any environmental
pollutant;

101
▪ Nuisance may be defined as “Anything that annoys, hurts or that which is
offensive such as obnoxious smells, noise, fumes, smoke/smog , air/water
pollution due to the effluents discharge or it can be any kind of
obstruction that interferes with the right of person to which he is
otherwise legally entitled to.”

▪ Nuisance are of two types

• Private Nuisance: Unreasonable interference with a person’s right
against nuisance.
• Public Nuisance: Unreasonable interference with the similar
rights of the general public. Public Nuisance is both a Tort and
Crime.
▪ Reasonableness as a standard for determining what is ‘Nuisance’: for
example a Saw Mill in a residential area and an industrial area. Even the
slightest Noise/Air and other forms of pollution generated by a saw mill
in a residential area may be treated as pollution if it is in a residential
Commented [h98]: Section 268 IPC defines Public Nuisance as
“A person is guilty of a public nuisance who does any act or is
guilty of an illegal omission which causes any common injury,
danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.

area. However if it is in an industrial area, the standards of pollution are A common nuisance is not excused on the ground that it
causes some convenience or advantage.”
comparatively higher. It is also important that while assessing the injury
the ‘reasonable person’ standard is applied rather than the
susceptibilities of hyper sensitive person or persons attuned to a dainty
mode of living.

▪ In Ram Baj Singh v. Babu Lal (AIR 1982 All. 285), a person built a brick
grinding machine in front of the consulting chamber of a medical
practitioner. The machine was generating lot of dust and noise which
polluted the atmosphere and entered the consulting chamber of the
medical practitioner and caused harm to him and the patients. The Court
held that this amounts to ‘Private Nuisance’. The reasons were that ‘to
constitute a Public Nuisance either there has to be nuisance to ‘public at
large’ or a ‘Special damage/substantial injury’ to a person. In this context
the court held that “Coming to the question of substantial injury,… every
injury is considered to be substantial which a reasonable person
considers to be so. In assessing the nature of substantial injury, the test
to be applied is again the appraisement made of the injury by a
reasonable person belonging to the society. The expression does not take
into account the susceptibilities of hyper sensitive person or persons
attuned to a dainty mode of living. No other meaning can be assigned or
has been assigned to the expression substantial injury.” Since no
substantial injury was proved the medical practitioner or to the public at
large, the court held that it is a case of ‘Private Nuisance’ as any act
would amount to a private nuisance which can reasonably said to cause
injury, discomfort or annoyance to a person.

102
▪ Nuisance as a wrong in violation of Right to Life: In V Lakshmipathy v.
State (AIR 1992 Kant. 57), the petitioners, aggrieved by the location and
operation of industries and industrial enterprises in a residential area in
alleged gross violation of the provisions of the Karnataka Town and
Country Planning Act. The petitioners are questioning industrial activity in
residential locality by establishing and running factories, work-shops,
factory sheds, manufacture of greases and lubricating oils by distillation
process and also production of inflammable products by respondents. By
holding that “the right to life inherent in Art. 21 of the Constitution of
India does not fall short of the requirements of qualitative life which is
possible only in an environment of quality. Where, on account of human
agencies, the quality of air and the quality of environment are threatened
or affected, the Court would not hesitate to use its innovative power
within its epistolary jurisdiction to enforce and safeguard the right to life
to promote public interest. Specific guarantees in Art. 21 unfold
penumbras shaped by emanations from those constitutional assurances
which help give them life and substance”, the Karnataka High Court
directed all industries in the residential area to be stopped immediately.

▪ Existing Nuisance and Future Nuisance : In Kuldeep Singh v. Subhash

Chandra Jain (AIR 2000 SC 1410) the plaintiff feared that the baking oven
and 12 feet chimney built by his neighbor would cause nuisance when
the bakery commences its activities. The Court held that “…a nuisance
actually in existence stands on a different footing than a possibility of
nuisance or a future nuisance. An actually existing nuisance is capable of
being assessed in terms of its quantum and the relief which will protect
or compensate the plaintiff consistently with the injury caused to his
rights is also capable of being formulated. In case of a future nuisance, a
mere possibility of injury will not provide the plaintiff with a cause of
action unless the threat be so certain or imminent that an injury
actionable in law will arise unless prevented by an injunction. The Court
may not require proof of absolute certainty or a proof beyond reasonable
doubt before it may interfere; but a strong case of probability that the
apprehended mischief will in fact arise must be shown by the plaintiff. In
other words, a future nuisance to be actionable must be either imminent
or likely to cause such damage as would be irreparable once it is allowed
to occur. There may be yet another category of actionable future
nuisance when the likely act of the defendant is inherently dangerous or
injurious such as digging a ditch across a highway or in the vicinity of a
childrens school or opening a shop dealing with highly inflammable
products in the midst of a residential locality.

▪ Noise Pollution: Can Noise be considered as Pollutant? Yes. The reasons

are:

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• Noise is a Pollutant as per Section 2(a) of the Air Act. It says ‘Air
Pollutant’ means any solid, liquid or gaseous substance (including
noise) present in the atmosphere in such concentration as may be
or tend to be injurious to human beings or other living creatures
or plants or property or environment.
• The Central Govt has also notified the “Noise Pollution
(Regulation and Control) Rules, 2000” as per the Rule making
powers under the EPA 1986. This Rule categorizes places into 04 Commented [h99]: Clause (ii) of sub-section (2) of section 3,
sub-section (1) and clause (b) of sub-section (2) of section 6 and
categories and fixes ambient air quality standard for each section 25 of the Environment (Protection) Act, 1986
category of area. See the table below:

• In Free Legal Aid Cell v. Govt of NCT of Delhi (AIR 2001 Del. 455 ),
the main grievance was that as a result of display of fire works
and use thereof during festivals and marriages, physical and
mental hazard is suffered by adults as well as children. Noise
pollution is caused due to use of high-sounding explosive fire
works and other blaring sound-producing devices and the effect
of the same results in pollution in sound, which is hazardous. It is
also submitted that because of indiscriminate use of
loudspeakers, noise pollution has become a routine affair
affecting mental as well as physical health of citizens. The Court
after a detailed analysis at para 24 held that : “The effect of noise
on health is a matter, which has yet not received full attention of
our judiciary, which it deserves. Pollution being wrongful
contamination of the environment which causes material injury to
the right of an individual, noise can well be regard as a pollutant
because it contaminates environment, causes nuisance and
effects the health of a person and would, therefore, offend Article
21, if it exceeds a reasonable limit.”

• In Re Noise Pollution v. Unknown (2005) 5 SCC 733 was a case

filed by Shri Anil K. Mittal, an engineer by profession moving the
Court pro bono publico. The immediate provocation for filing the

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 petition was that a 13 year old girl was a victim of rape (as
reported in newspapers of January 3, 1998). Her cries for help
sunk and went unheard due to blaring noise of music over
loudspeaker in the neighbourhood. The victim girl, later in the
evening, set herself ablaze and died of 100% burn injuries. The
petition complains of noise created by the use of the
loudspeakers being used in religious performances or singing
bhajans and the like in busy commercial localities on the days of
weekly offs. Best quality hi-fi audio systems are used. Open space,
meant for use by the schools in the locality, is let out for use in
marriage functions and parties wherein merry making goes on
with hi-fi amplifiers and loudspeakers without any regard to
timings. Modern residents of the locality organize terrace parties
for socializing and use high capacity stereo systems in abundance.
These are a few instances of noise pollution generated much to
the chagrin of students taking examinations who find it utterly
difficult to concentrate on studies before and during
examinations. The noise polluters have no regard for the
inconvenience and discomfort of the people in the vicinity. Noise
pollution has had its victims in the past and continues to have
victims today as well. The petitioner seeks to invoke the writ
jurisdiction of this Court so that there may not be victims of noise
pollution in future. The principal prayer is that the existing laws
for restricting the use of loudspeakers and other high volume
noise producing audio-video systems, be directed to be rigorously
enforced.

• Religious Rights and Noise Pollution: In Church of God (Full

Gospel) in India v. KKR Majestic Colony Welfare Association (2002)
7 SCC 282….the court said that: “Undisputedly no religion
prescribes that prayers should be performed by disturbing the
peace of others nor does it preach that they should be through
voice-amplifiers or beating of drums. In our view, in a civilized
society in the name of religion, activities which disturb old or
infirm persons, students or children having their sleep in the early
hours or during day-time or other persons carrying on other
activities cannot be permitted. It should not be forgotten that
young babies in the neighbourhood are also entitled to enjoy their
natural right of sleeping in a peaceful atmosphere. A student
preparing for his examination is entitled to concentrate on his
studies without their being any unnecessary disturbance by the
neighbours. Similarly, old and infirm are entitled to enjoy
reasonable quietness during their leisure hours without there
being any nuisance of noise pollution. Aged, sick, people afflicted

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 with psychic disturbances as well as children up to 6 years of age
are considered to be very sensible to noise. Their rights are also
required to be honoured.”…“Undoubtedly, one can practice,
profess and propagate religion, as guaranteed under Article
25(1) of the Constitution but that is not an absolute right. The
provision of Article 25 is subject to the provisions of Article
19(1)(a) of the Constitution. On true and proper construction of
the provision of Article 25(1), read with Article 19(1)(a) of the
Constitution, it cannot be said that a citizen should be coerced to
hear any thing which he does not like or which he does not
require.”

o Environmental Pollution as Trespass

▪ It means intentional or negligent direct interference with personal or
proprietary rights without lawful excuse. The tort of trespass is actionable
per se and there is no need to show damage as a result of that trespass.
There are two things that needs to proved for constituting the tort of
trespass
• There must be intentional or negligent interference with the
personal or proprietary right
• Such interference must be direct rather than consequential. For
example when Mr. A throws garbage on Mr. B’s land it is trespass.
But if the garbage is dumped in the roadside by Mr. A from where
a stray dog picks it and dumps in Mr. B’s property is not trespass. Commented [h100]: However what happens to the foul smell
from the garbage deposited by Mr. A on the roadside? Can the foul
smell from the garbage which directly enters and interferes with Mr
▪ Environmental Pollution as Continuing Trespass: B’s right to enjoyment of his property be considered as trespass?
▪ Read Rhymes, C. M. (2012). ENVIRONMENTAL CONTAMINATION AS Commented [h101]: Continuing trespass broadly can refer to
any recurring infringement of another person’s rights. While
CONTINUING TRESPASS. Environmental Law, 42(4), 1381–1400. sometimes trespass is used in this broad sense, continued trespass
http://www.jstor.org/stable/43267828 which speaks about the in the modern context generally refers to trespass onto
the land or property of another repetitiously or without ever
competing jurisprudential approaches on the subject in the USA (Optional ceasing. See
to read) https://www.law.cornell.edu/wex/continuing_trespass#:~:text=Cont
inuing%20trespass%20broadly%20can%20refer,repetitiously%20or%
20without%20ever%20ceasing

o Environmental Pollution and Negligence

▪ When there is a duty to take care and the care is not taken which results
in some harm to another person, then it is a case of negligence. In order
to succeed in the suit for negligence there has to be some fault on behalf
of the defendant. It also must be proved that there was a direct link
between negligence and the harm caused. It also must be proven that
the person against whom negligence is claimed has not taken due care
which he was required to take under the law.

106
 ▪ In Naresh Dutt Tyagi v. State of UP (1995) Supp. (3) SCC 144, chemical
pesticides were stored in a godown in a residential area. Fumes
emanating from the pesticides leaked to the contiguous property through
ventilators and resulted in death of three children. The court held that it
was a case of negligence and held the defendants liable.

▪ In Mukesh Textile Mills v. Subramanya Sastri (AIR 1987 Kant. 87), the Commented [h102]: Well written judgment by Justice
Venkatachalliah. Please read
appellant had a sugar factory and used to store molasses, a by-product in
the manufacturing of sugar, in tanks which were close to respondent’s
land and separated by a water channel. One day one of the tanks
collapsed and emptied in the water channel and caused damage to the
respondent’s crop. The court said that:

• The Appellant who had stored large quantity of molasses in tanks

had the duty to take reasonable care in the matter of
maintenance of the tanks and storage of molasses. If this duty of
reasonable care is not performed then it is a case of negligence.
The appellant could have reasonably foreseen the consequence of
the breach of the tank.
• Liability that arises from non-natural use of land. The appellant
was liable for the consequence of the escape of the fluid from the
tank. The court also cited the below para from British Railway
Board v. Herrington, 1972 AC 877 at p. 898 , “ .....If a person
chooses to assume a relationship with members of the public, say
by setting out to drive a car or to erect a building fronting a
highway, the law requires him to conduct himself as a reasonable
man with adequate skill, knowledge and resources would do. He
will not be heard to say that in fact he could not attain that
standard. If he cannot attain that standard he ought not to
assume the responsibility which that relationship involves....”

o Environmental Pollution & Strict Liability/Absolute Liability

▪ Liability may be broadly divided into two kinds
• Fault Based Liability - Where there is wrong done as a result of
‘non-compliance of a legal duty to do something’ OR ‘violation of
a duty to NOT to do something’. In other words “fault-based
liability is conceived as liability predicated on some sort of
wrongdoing. The defendant’s liability rests on the defendant
having been “at fault,” i.e., having failed to act as required.”
• No–Fault Liability/Strict Liability: “It is a liability without
wrongdoing. A defendant subject to strict liability must pay
damages irrespective of whether s/he has met, or failed to meet,
an applicable standard of conduct. Action that causes harm is all
that is required.”

107
 Commented [h103]: For a critical analysis of these concepts
read John C.P. Goldberg and Benjamin C. Zipursky, The Strict Liability
▪ Refer the case Rylands v. Fletcher (1868) LR 3 HL 330 and the rule of in Fault and the Fault in Strict Liability, 85 Fordham L. Rev. 743
Strict Liability . The rule says that “…a person who for his own purpose (2016).at
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5250&co
brings on to his hand and collects and keeps there anything likely to do ntext=flr#:~:text=By%20contrast%2C%20fault%2Dbased%20liability,
mischief if it escapes must keep it at his peril and, if he fails to do so, is opposites%20is%20a%20monumental%20mistake.
prima facie liable for the damage, which is the natural consequence of its
escape.The liability under this rule is strict and it is no defence that things
escaped without that person ‘s willful act, default or neglect or even that
he had no knowledge of its existence”
▪ However the Rule of Strict Liability is subject to the following
exceptions
1. An act of God (Earth quake)
2. An act of third party (Sabotage)
3. Plaintiff’s own fault
4. Plaintiff’s Consent
5. Natural Use of land by the defendant
6. Use under statutory authority

▪ This principle of ‘Strict Liability’ is much relevant in cases of

environmental pollution. However it is important that two conditions are
satisfied to apply this principle
1. There is a non-natural use of land
2. There must be an escape from the land of something which is
likely to cause harm/mischief if it escapes

▪ From Strict Liability to Absolute Liability: Law needs to change in

accordance with the changes in the society particularly in the context of
changes in the science and technology. So the Supreme Court in M.C.
Mehta v. Union of India (1987) [popularly called as the Oleum Gas Leak
Case) evolved a new principle of Absolute Liability .

▪ As per the Court the two elements of Absolute Liability are

1. “…where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an
accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic gas
the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v.
Fletcher.”
2. “….the measure of compensation…must be correlated to the
magnitude and capacity of the enterprise because such
compensation must have a deferent effect. The larger and more

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 prosperous the enterprise, the greater must be the amount of
compensation payable by it for the harm caused on account of an
accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise.”

▪ The Supreme Court concurred with this ratio of absolute liability as laid
down in Oleaum gas case, in Union Carbide Corporation v. Union of India Commented [h104]: Bhopal gas tragedy case
(1991) 4 SCC 584 [Read the facts of the case]

▪ The absolute liability Principle was further emphasized by the Supreme

Court while developing the Principle of Polluter Pays in the following
cases making it an integral element of Polluter Pays principle:
• Indian Council of Enviro-Legal Action v. Union of India (1996) 3 SCC
212
• Vellore Citizen Forum v Union of India [1996 5 SCC 647] Commented [h105]: Discussed earlier in this Notes. Note that
the Absolute Liability is the nature of liability in Polluter Pays
Principle.

• REMEDIES UNDER THE GENERAL STATUTES

o Under the Civil Procedure Code

• Private nuisance: Nuisance in its conventional sense refers to the
wrong of private nuisance emanating from the customary right to
enjoyment of one’s own property without interruption to the
extent that the rights of another do not stand to be abridged in
the course. Reasonableness plays a crucial role in deciding
whether an act constitutes actionable nuisance or not. Since
private nuisance is categorically the nuisance caused to individual
and not the public at large, it cannot be made the subject of an
indictment. However, it can constitute a sufficient cause of action
of a civil suit claiming damages and injunction under section 9 of Commented [h106]: The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature
the CPC. excepting suits of which their cognizance is either expressly or
• The law of easement (Indian Easement Act, 1882) guarantees to impliedly barred.

the owner of land, beneficial enjoyment thereof free from air,

water or noise pollution (Section 7). An infringement of this may
also constitute private nuisance.
• The remedy for Private Nuisance would include
o Damages
o Injunction

• Public nuisance has not categorically been defined in the Code of

Civil Procedure, 1908. However, for the purpose of adjudication of
the cause, the definition has been borrowed from section 268 of
the Indian Penal Code, 1860. According to section 268, a person is

109
 guilty of a public nuisance who does any act or is guilty of an
illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or
occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right. Commented [h107]: Public Nuisance is both a civil wrong and a
crime

• The distinction between private and public nuisance is a matter of

fact and not law and can collapse in situations where the right
being violated is a public right but the injury is caused to an
individual and not the public at large. In many cases it essentially
is a question of degree. An example of such a situation is
obstruction of a highway affecting houses adjacent to it. In such
cases, even though the number of people being affected is not
large, the right being violated is public in nature. Unlike private
nuisance, public nuisance does not consider easement rights as
acceptable defence for nuisance. Merely the fact that the cause of
nuisance has been in existence for a long time does not bar any
challenge against it as no length of time can legalize a public
nuisance.

• In the event of public nuisance, u/s 91 CPC “…the Advocate

General or two or more persons having obtained the consent in
writing of the Advocate General, may institute a suit, though no
special damage has been caused, for a declaration and injunction
or for such other relief as may be appropriate to the
circumstances of the case.”

• If the members of the class suffers any special damage, the action
is maintainable even without the consent of the AG (Faquirchand
v. Sooraj Chand, AIR 1949 All 467)

• In 1976, CPC was amended and now it is possible for two or more
persons to sue with the consent of the court & without the
consent of the AG. (Order 1 Rule 8) Commented [h108]: Order I Rule 8 of the Code of Civil
Procedure 1908 deals with representative suit. A representative suit
is a suit that is filed by one or more persons on behalf of themselves
• Considering Public Nuisance as a civil wrong, remedies would and others having same interest in the suit. The general rule is that
all persons interested in a suit ought to be joined as parties to it.
include Rule 8 forms an exception to this general rule. The rule enacted is
for convenience based on reason and good policy as it saves from
expense and trouble which would otherwise have to be incurred in
o Injunction such cases.
o Damages

• Under the IPC and CrPC

110
o Public Nuisance is also a crime under the IPC. Section 268 IPC, 1860 defines
Public nuisance. “A person is guilty of a public nuisance who does any act or is
guilty of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some
convenience or advantage.”

o Section 133 CrPC is a condition order to remove nuisance. This provision is Commented [h109]: Sections 133 to 144A under Chapter X of
the CrPC are devoted entirely to regulating public nuisance
usually used in urgent cases where public nuisance needs to be removed. Since it
is the basic duty of the government to ensure that law and order is maintained
at all times and society is protected from public nuisance, the Executive
Magistrate is given power to remove public nuisance under the said section

o Important Cases

▪ Municipal Corporation, Ratlam v. Vardhichand (AIR 1980 SC 1622) the SC

held that statutory agencies should not defy their duties by urging in self-
defense of bankruptcy . The facts of the case, in the words of Justice
Krishna Iyer is as follows:
• “The Ratlam municipal town, like many Indian urban centres, is
populous with human and sub-human species, is punctuated with
affluence and indigence in contrasting co-existence, and keeps
public sanitation a low priority item. what with cesspools and filth
menacing public health. … Ratlam town is an area where
prosperity and poverty live as strange bedfellows. The rich have
bungalows and toilets, the poor live on pavements and litter the
street with human excreta because they use roadsides as latrines
in the absence of public facilities. And the city fathers being too
busy with other issues to bother about the human condition,
cesspools and stinks, dirtied the place beyond endurance which
made the well-to-do citizens protest, but the crying demand for
basic sanitation and public drains fell on deaf ears. Another
contributory cause to the insufferable situation was the discharge
from the Alcohol Plant of malodorous fluids into the public street.
In this lawless locale, mosquitoes found a stagnant stream of
stench so hospitable to breeding and flourishing, with no
municipal agent disturbing their stinging music at human expense.
The local denizens, driven by desperation, at long last, decided to
use the law and call the bluff of the municipal body's bovine
indifference to its basic obligations under”the relevant provisions
of the M. P. Municipalities Act, 1961 which speaks about duty of
the Municipal council to keep the places and facilities clean.

111
 • J. Iyer continues: “And yet the municipality was obvious to this
obligation towards human well-being and was directly guilty of
breach of duty and public nuisance and active neglect. The Sub
Divisional Magistrate, Ratlam, was moved to take action under s.
133 Cr.P.C., to abate the nuisance by ordering the municipality to
construct drain pipes with flow of water to wash the filth and stop
the stench. The Magistrate found the facts proved, made the
direction sought and scared by the prospect of prosecution under
s. 188 I.P.C., for violation of the order under s. 133 Cr.P.C., the
municipality rushed from court to court till, at last, years after, it
reached this Court as the last refuge of lost causes. Had the
municipal council and its executive officers spent half this
litigative zeal on cleaning up the street and constructing the
drains by rousing the people's sramdan resources and laying out
the city's limited financial resources, the people's needs might
have been largely met long ago. But litigation with other's funds is
an intoxicant, while public service for common benefit is an
inspiration; and, in a competition between the two, the former
overpowers the latter. Not where a militant people's will takes
over people's welfare institutions, energises the common human
numbers, canalises their community consciousness, forbids the
offending factories from polluting the environment, forces the
affluent to contribute wealth and the indigent their work and thus
transforms the area into a healthy locality vibrant with popular
participation and vigilance, not neglected ghettoes noisy with
squabbles among the slimy slum-dwellers nor with electoral
'sound and fury signifying nothing.' The Magistrate, whose activist
application of s. 133 Cr.P.C., for the larger purpose of making the
Ratlam municipal body to do its duty and abate the nuisance by
affirmative action, has our appreciation.”
• The court finally upheld the powers of the executive magistrate
under section 133 crpc to issue such orders.

▪ Smoking in public places as ‘Public Nuisance’ & violates Right to Life/

sections 268, 290 ipc r/w article 21 of the constitution
• K Ramakrishnan v. State of Kerala (1999 Ker)
• Murali S Deora v. Union of India (2001) 8 SCC 765

▪ Other Cases:
• Deshi Sugar Mills v. Tupsi Kahar (AIR 1926 Pat 506): SDM ordered
closure of two sugar mills which were draining dirty and toxic
water into the river.

112
 • Raghunandan v. Emperor (AIR 1931 All 433) : the EM ordered a
factory owner to shut the factory engines from 9PM to 5AM to
save the community from noise pollution which affects the
physical comfort of the community.
• Ram Baj Singh v. Babulal (AIR 1982 All 285) : special damage
caused to a doctor by a brick factory
• Govind Singh v. Shanti Swaroop (AIR 1979 SC 143): Magistrate
ordered the demolition of the oven and chimni and thereafter the
closure of business.
• Krishna Gopal v. State of Madhya Pradesh, (1986 CrLJ 396)
complaint against a glucose saline manufacturing company in a
residential colony and a complaint from a lady whose husband
was a heart patient.
• Kachrulal Bhagirat Agarwal v. State of Maharashtra (2004 CrLJ
4634) : closure of loading and unloading of red chilies in a
residential locality. SC’s distinction between ‘all potential
nuisances’ & ‘an imminent danger’

• PROTECTION OF WATER, AIR AND ENVIRONMENT IN INDIA

o The following are the MOST IMPORTANT LEGLIASTAION in the respective area:
• Environment in General: Environmental Protection Act, 1986
• Water: Water (Prevention and Control of Pollution) Act, 1974
• Air (Prevention and Control of Pollution) Act, 1981

▪ The following aspects are important in this part of the module

• Objectives of these legislations
• The institutional mechanisms created under these legislations
• Powers and functions of the institutional mechanisms created
under these legislations
• Various Rules and Regulations under these legislations
• Important judicial decisions

o CAUTION: READ the Bare Acts generally and the sections mentioned below
with emphasize Commented [h110]: Very Important

o Environmental Protection Act, 1986

▪ Objectives
• To enact a general law on environmental protection which could
cover uncovered gaps in the areas of major environmental
hazards as the Water Act and Air Act covered only specific types
of pollution.

113
 • To implement India’s commitment at the United Nations
Conference on the Human Environment held at Stockholm in
June, 1972 (read Articles 73 and 253 of the Indian Constitution)
• Create the mechanism for the protection of the environment and
further to implement the decisions related to the protection and
improvement of environment and the prevention of hazards to
human beings, other living creatures, plants and property.
• To provide for deterrent punishment to those who endanger
human environment, safety and health
• Though the SOR of the Act do not specifically mention, it is also
generally believed that the legislation was made particularly as a
REACTION to the Bhopal Gas tragedy in the year 1984. Commented [h111]: Proactive versus Reactive: Legal system
should better be proactive rather than reactive

▪ Important Definitions
• Section 2 (a) – Environment
• Sections 2 (b) & (c) – Environmental Pollutant and Environmental
Pollution

▪ Powers of the Central Government

• Section 3- General Powers

• Section 3 (3) – Central Government’s power to constitute

Authority/Authorities for the purpose of exercising and
performing such of the powers and functions of the Central
Government. The question is whether this is a duty of the central
government or not? In this regard in Vellore Citizen Forum case,
the court held that …..”The main purpose of the Act is to create
an authority or authorities under Section 3(3) of the Act with
adequate powers to control pollution and protect the
environment. It is a pity that till date no authority has been
constituted by the Central Government. The work which is
required to be done by an authority in terms of Section 3(3) read
with other provision of the Act is being done by this Court and the
other Courts in the country. It is high time that the Central
Government realises its responsibility and statutory duty to
protect the degrading environment in the country. If the
conditions in the five districts of Tamil Nadu, where tanneries are
operating, are permitted to continue then in the near future all
rivers/canals shall be polluted, underground waters
contaminated, agricultural lands turned barren and the residents
of the area exposed to serious diseases. lt is, therefore, necessary
for this Court to direct the Central Government to take immediate
action under the provisions of the Environment Act.” So

114
 accordingly the Central Government constituted the “Loss of
Ecology (Prevention and Payment of Compensation Authority” for
the State of Tamil Nadu to implement the Polluter Pays and
Precautionary principle. Another example is “Environment Impact
Assessment for the National Capital Region”; “Environment
Pollution (Prevention and Control) Authority for the National
Capital Region” in the year 1998.

• Power to Give Directions under Section 5

• Prevention, Control, and Abatement of Environmental Pollution

– Read Chapter III of the Act (Sections 7 to 17)

• The EPA 1986 is an enabling legislation &central government has

Power to Make Rules (Read Sections 6, 25, 26 read with section 3
of the Act). Based on the Rule making powers the following rules
are made so far:
o 2-T Oil (Regulation of Supply and Distribution) Order, 1998
o Batteries (Management and Handling) Rules, 2001
o Battery Waste Management Rules, 2022
o Bio-Medical Waste (Management and Handling) Rules,
1998
o Bio-Medical Waste Management Rules, 2016
o Chemical Accidents (Emergency Planning, Preparedness
and Response) Rules, 1996
o Construction and Demolition Waste Management Rules,
2016
o E-Waste (Management) Rules, 2016
o E-Waste (Management) Rules, 2022
o Environment (Protection) Rules, 1986
o Hazardous Wastes (Management and Handling) Rules,
1989
o Hazardous Wastes (Management, Handling And
Transboundarymovement) Rules, 2008
o Hazardous and other Wastes (Management and
Transboundary Movement) Rules, 2016
o Lead Stabilizer in Polyvinyl Chloride (PVC) Pipes and
Fittings Rules, 2021
o Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989
o Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989
o Ministry of Environment, Forest and Climate Change

115
 o Municipal solid wastes (Management and handling) Rules,
2000
o Noise Pollution (Regulation and Control) Rules, 2000
o Ozone Depleting Substances (Regulation and Control)
Rules, 2000
o Plastic Waste Management Rules, 2016
o Plastics Manufacture, Sale and Usage Rules, 1999
o Recycled Plastics Manufacture and Usage Rules, 1999
o Regulation of Lead Contents in Household and Decorative
Paints Rules, 2016
o Rules For The Manufacture, Use, Import, Export And
Storage Of Hazardous Micro-Organisms/genetically
Engineeredorganisms Or Cells, 1989
o Scheme on Labelling of Environment Friendly Products
(Eco-Mark)
o Wetlands (Conservation and Management) Rules, 2010

o Water (Prevention and Control of Pollution) Act, 1974

▪ Water is an entry in the state list of schedule 7, hence this legislation is
passed under Article 252 of the Constitution with the consent or two or
more states.

▪ Objectives:
• To provide for the prevention and control of water pollution and
the maintaining and restoring of wholesomeness of water.
• To establish Central and State Boards for the Prevention and
Control of Water Pollution
• To confer and assign to such boards powers and functions for
prevention and and control of water pollution
• To prescribe and enforce penalties for the contravention of the
provisions of the Act
• To establish Central and state water testing laboratories to enable
the Board to assess the extent of pollution.

▪ Important Definitions
• Section 2 (e) –Pollution
• Section 2 (j)- Stream
• Section 2 (k)- Trade Effluent
• Section 2 (g) – Sewage Effluent & Section 2(gg)- Sewage

▪ Institutional Mechanisms created under the Act and their composition,

powers and functions
• Central Government

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 • Central Pollution Control Board (CPCB) ---Sections 3, 16, 18
• State Government-
• State Pollution Control Board (SPCB)---Sections 4, 17, 18
• Joint Boards – Sections 13, 14
• Read the CHAPTER V of the Act “PREVENTION AND CONTROL OF
WATER POLLUTION” (Section 19 to 33A)

o Air (Prevention and Control of Pollution) Act, 1981

▪ Under article 253 of the Constitution

▪ Objectives:
• To provide for the prevention, control and abatement of pollution
• To provide for the establishment of Central and State Boards for
the prevention, control and abatement of pollution
• For conferring Powers and assigning functions to such Boards for
the prevention, control and abatement of pollution
• To lay down the standards to maintain the quality of air.

▪ Important Definitions
• Section 2 (a) –Air Pollutant
• Section 2 (b) – Air Pollution
▪ Institutional Mechanism created under the Act, their composition,
Powers and Functions
• CPCB – Sections 3, 6, 16,18
• SPCB – Sections 4, 5, 17,18
▪ Read CHAPTER IV - PREVENTION AND CONTROL OF AIR POLLUTION –
(Sections 19 to 31B)

PROTECTION OF FOREST, WILD LIFE AND BIODIVERSITY

• Forest Governance in India

• Importance of forests
▪ Human beings and Forests: Over 1.6 billion people depend on forests for
food or fuel, and some 70 million people worldwide - including many
Indigenous communities - call forests home. Forests provide us with
oxygen, shelter, jobs, water, nourishment and fuel. With so many people
dependent on forests, the fate of our forests may determine our own
fate as well.
▪ Prevention of Social Erosion: Forests help prevent erosion and enrich
and conserve soil, helping to protect communities from landslides and
floods and producing the rich topsoil needed to grow plants and crops.
Forests also play an important role in the global water cycle, moving
water across the earth by releasing water vapor and capturing rainfall.

117
 They also filter out pollution and chemicals, improving the quality of
water available for human use. The destruction of forests has a knock-on
effect on agriculture and can affect the production of the food we eat.
▪ Human Health and Forests: Human health is inextricably linked to forest
health. Deforestation has serious consequences on the health of people
directly dependent on forests, as well as those living in cities and towns,
as it increases the risk of diseases crossing over from animals to humans.
Meanwhile, time spent in forests has been shown to have a positive
benefit on conditions including cardiovascular disease, respiratory
concerns, diabetes and mental health.

o Why forests matter for nature

▪ Biodiversity and Forests: As forests are home to over 80% of terrestrial
biodiversity, including 80% of amphibians, 75% of birds and 68% of
mammals. Deforestation of some tropical forests could lead to the loss of
as many as 100 species a day. Our ability to stop biodiversity loss
is heavily dependent on our ability to stop forest loss. When we take
away the forest, it is not just the trees that go. The entire ecosystem
begins to fall apart, with dire consequences for all of us. Forests provide
habitats for plants and animals, including some of our planet’s most
iconic species like the tiger, giant panda, gorilla and orangutan. Habitat
loss is one of the main causes of biodiversity loss, as land that once was
forest is cleared for other uses. Forest-dwelling wildlife populations
(which include mammals, birds, reptiles and amphibians)
have declined on average by 69% since 1970, with tropical forests such as
the Amazon the worst hit.

o Why forests are so important for the climate:

▪ Assimilative capacity/Syncing Capacity of the forests: Forests are the
largest storehouses of carbon after the oceans, as they absorb this
greenhouse gas from the air and lock it away above and below ground.
So, it is no surprise that when we cut down or damage our forests, we
release huge amounts of carbon emissions that contribute to the climate
crisis. But forests are also important as they can help protect people and
nature from the consequences of a warming world. As the impacts of
climate change - including floods and storms from rising sea levels and
increased precipitation - become more frequent and severe, forests can
provide a crucial buffer for our communities. Extreme events caused by
climate change, such as more frequent wildfires, limit the ability of our
forests to regenerate. At the same time, deforestation contributes to
climate change by increasing the risk of fires. Stopping deforestation and
restoring forests is a crucial part of climate action.

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 o Courtesy:
https://wwf.panda.org/discover/our_focus/forests_practice/importance_forests

• Forest Governance in British India

o When the British came to India it is estimated that 70-80% of Indian land had
green canopy. This started reducing rapidly due to the following reasons:

▪ massive deforestation commenced after colonization: The British

needed raw materials for their industrial revolution & timber to build
their war ships.The timber resources of the Britain had been exhausted,
and Great Britain was desperate for new sources of raw materials to
construct the ships with which the Royal Navy. The British saw only
commercial value of timber for the raw material forest resources and
shipbuilding qualities of teakwood

▪ Emphasize of British land use policy on agricultural expansion:

According to E.P. Stebbing, an early Indian forest historian, "in many
localities forests were an obstruction to agriculture and therefore a
limiting factor to the prosperity of the country. The whole policy was to
extend agriculture, and the watchword of the time was to destroy the
forests with this end in view.”

▪ Indepenedent timber contractors: In the middle of the 18th century

exploitation of forests and its resources were contracted to Indian
contractors with the mandate to exploit the maximum resources. In
order to meet the domestic demand for construction timber, contracts
were awarded to independent timber merchants. With no adequate

119
 regulation or control over the pace of extraction, timber was felled with
little regard for future supplies’

▪ Construction of Railway network in India: British desires to construct an

extensive railroad network throughout the subcontinent were also taking
their toll by 1850s. Colonial administrators recognized that it was
imperative to integrate India with international commodity markets in
order to facilitate the export of raw materials from India and the import
of finished goods into domestic Indian markets. Moreover, in the wake of
unrest culminating in the Mutiny of 1857, British colonial authorities
realized that rapid troop deployment was also critical. It became obvious
that an extensive rail network was essential to fulfill these objectives. Rail
lines increased accordingly, growing from 32 kilometers in 1853 to 7,678
kilometers by 1870.’

o Consequence of this over exploitation of forest resources: In colonial India the

tree cover had begun to disappear up to 50-60 percentage. This had impacted
the economic concern about the decreasing availability of raw materials.

o Legal and Policy reaction to the reducing forests and its consequence:

▪ The Government Forest Act, 1865: The law allowed officials to manage
and preserve forest resources for strategic and development needs by
regulating trade and exploitation of forest products. Section 2 of the Act
allowed the government to declare as 'Government Forest "such land
covered with trees, brushwood or jungle” provided that such notification
shall not abridge or affect any existing rights of individuals or
communities. However the British officers themselves criticized this
legislation. They determined that future legislation would have to "treat
the customary use of the forest by the Indian villager as based on
privilege' and not on 'right'." In other words, Indian villagers retained
entirely too much access to Indian forests under the Government Forests
Act”

▪ The Indian Forest Act of 1878: This Act repealed the 1865 Act which
enabled the government to bring potentially valuable forests completely
under the control and management of the Forest Department. It also
introduced a classification system of forests which designated three
types of forests.
• Reserved forests were intended to maintain the supplies of
commercial timber which British strategic and developmental
goals required. Reserved forests were established in areas with
large compact stands of commercially valuable species that could
sustain long term exploitation. Moreover, the primary objective of

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 these forests was to nullify all previously existing rights and
protect them from any infringement by the local populace.
• Reservation of forests was implemented through an elaborate
process of Forest Settlement. State-appointed Forest Settlement
Officers published proclamations designating the areas to be
reserved and requesting villagers to come forward to claim any
rights to which they felt entitled. The Settlement Officer could
grant such claims wholly or partially, or terminate them through
compensation. Claimed rights, such as the number of cattle that
could be grazed or the amount of fuelwood collected, ostensibly
referred to rights that had been recorded in earlier land
settlements. Settlement Officers had great discretion in
determining rights and settling claims. In effect, their primary
objective was to "secure the 'best possible legal title"' over forest
areas the government sought to control.

• Protected forests, consisted of forests that would become

reserved forests in the future, once they had been demarcated
and covered by working plans. Control in these areas was
established through provisions that reserved access to
commercially valuable tree species and allowed imposition of
restrictions on activities such as grazing.

• Village forests were reserved forest areas in which full governing

power had been assigned to village authorities by the
government. However, because these areas were first classified as
reserved forests, suspicious villagers seldom exercised the control
allowed by this provision.

▪ In summary the forest governance by the British resulted in two

consequences:
• Massive reduction in forest cover as a result of the revenue model
of colonial forest policy.
• Conversion of the ‘rights’ of tribal/rural people to access forests
and collect various Minor Forest Products were converted to
‘Privileges’

▪ The Indian Forest Act, 1927

• Objective of the legislation: To consolidate the law relating to

forests, the transit of forest-produce and the duty leviable on
timber and other forest-produce.

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 • This is only an Act to consolidate the economic/revenue model of
forest governance with no emphasise on ecological conservation
and social justice objectives. Commented [h112]: •Some of the authors say that
the Act balances the ecological objectives with revenue
model…which I believe is wrong.
• The classification of the 1878 Act is followed in this Act also .
That is Forest is classified into THREE.

• Reserve Forests: Read CHAPTER II - OF RESERVED FORESTS

(Sections 3 -27)

• Village Forests: Read CHAPTER III- OF VILLAGE-FORESTS

(section 28)

• Protected Forests: Read CHAPTER IV OF PROTECTED FORESTS

(Sections 29 – 34) Commented [h113]: Read the Sections before reading any
commentary from other sources

▪ Forest Governance in Post Independence India:

• When gained Independence , India was an underdeveloped
country with shortage of food grains & agriculture needs to be
expanded . There was a need to strengthen industrialization &
industry needs raw materials. India was also a Net importer of
everything (including paper, paper boards etc. )

• Following the Government of India Act, 1935, forests remained in

List 2, Schedule 7 of the Constitution of India.

• The Indian Forest Policy , 1952 stated that the “fundamental

concepts” of the British forest policy “…still hold good”. It
emphasized on national economic interest over other concerns . It
said “maximum forest productivity with a view to meeting the
growing demand for industrial raw materials, timber, and other
forest produce for defence, communications and domestic needs
and to development potential with the ultimate aim of national
prosperity.“ It was driven primarily by economic development
goals and strategies, resource extraction, and the promotion of
industrial and commercial needs. The 1952 policy also said “to
maximize productivity of India's natural resources” prevention of
“soil erosion along treeless banks of rivers” is important & hence
1/3 of land should be under forest cover (60% in mountains &
20% in plains).

122
 • Based on this reality/conviction, the Indian Forests Act, 1927, a
statute in the revenue model of forest governance, continued to
as the law in Independent India.

• However there were many criticisms…..for example the Scheduled

Areas and Scheduled Tribes Commission in 1960 observed that
traditional rights of indigenous forest-dwelling people were
increasingly curtailed after 1952 policy. The ‘Privileges’ of
collection of forest products, grazing rights etc. as granted under
1894 policy were reduced as ‘concessions’ under the 1952 policy.

• Another criticism was about the budgetary allocation….Though

1/3 land was for forests, very little money was earmarked for
afforestation & and the emphasize on viewing ‘forests for
commercial purposes’ continued.

• Another example of this Policy objective was the study of Forestry

by National Commission on Agriculture 1970 in which the
following recommendations were made:
o Abolition of Nistar Rights : the rural people have not Commented [h114]: Nistar' means the concession granted for
removal from forest coupes (small trees) on payment at stipulated
contributed much towards the maintenance or rates, specified forest produce for bonafide domestic use, but not
regeneration of the forests. Having over-exploited the for barter or sale
resources, they cannot in all fairness expect that
somebody else will take the trouble of providing them
with forest produce free of charge. In this situation all
unclassed and protected forests should be constituted into
reserved forests & in place of concessionary access rights
of rural population, the forestry departments should sell
forest produce.
o It also suggested that future forest policy must "take into
account the institutional changes and the infrastructure
required for utilization of the forest raw materials from
the point of view of self-sufficiency, reduction in net
imports of wood-based products and substantial exports
of consumer items, like panel products”
o Suggested state monopoly with the objective of economic
purposes at the cost of traditional rights of
tribal/local/rural people

▪ Change from a pure economic model of forest governance to a balanced

policy (balancing economic rights versus ecological importance versus
social aspects – Pillars of sustainable development). The following
indicates a gradual policy change
• The Wild Life (Protection) Act, 1972 (Read the Bare Act ) Commented [h115]: 1

123
 o Objective: To protect wild animals, birds and plants and
to ensure ecological and environmental security of the
country

o Read CHAPTER II - AUTHORITIES TO BE APPOINTED OR

CONSTITUTED UNDER THE ACT (sections 3 to 8)

o Read CHAPTER III - HUNTING OF WILD ANIMALS (Sections

9 -12)

o Wild Life Sanctuaries (sections 18 to 34)

o National Parks (Sections 35 to 38)

o NATIONAL TIGER CONSERVATION AUTHORITY (CHAPTER

IVB) and Project Tiger
o Schedules of the Wildlife Protection Act: There are six
schedules provided in the Wildlife Protection Act. They are
discussed in the table below.
Commented [h116]: Project tiger is a wildlife conservation
project which was launched by the Government of India in 1972 to
protect the tigers in the country. The objective of the project was to
ensure the survival and maintenance of the tiger population in
specially constituted Tiger reserves throughout India.

Schedule I Schedule II

• This Schedule covers endangered • Animals under this list are also
species. accorded high protection.
• These species need rigorous • Their trade is prohibited.
protection and therefore, the harshest • They cannot be hunted except
penalties for violation of the law are under threat to human life.
under this Schedule.
• Examples: Kohinoor (insect),
• Species under this Schedule are Assamese Macaque, Bengal
prohibited to be hunted throughout Hanuman langur, Large Indian Civet,
India, except under threat to human Indian Fox, Larger Kashmir Flying
life. Squirrel, Kashmir Fox, etc.
• Absolute protection is accorded to
species on this list.
• The Trade of these animals is
prohibited.
• Examples: tiger, blackbuck, Himalayan
Brown Bear, Brow-Antlered Deer, Blue
whale, Common Dolphin, Cheetah,
Clouded Leopard, hornbills, Indian

124
 Gazelle, etc.

Schedule III & IV Schedule V

• This list is for species that are not • This schedule contains animals that
endangered. can be hunted.
• This includes protected species but the • Examples: mice, rat, common crow,
penalty for any violation is less fruit bats, etc.
compared to the first two schedules.
• Examples: hyena, Himalayan rat,
porcupine, flying fox, Malabar tree
toad, etc.

Schedule VI

• This list contains plants that are forbidden from cultivation.

• Examples: pitcher plant, blue vanda, red vanda, kuth, etc.

• 42nd amendment to the Indian Constitution 1976 Commented [h117]: 2

o Article 48A and 51Ag were added in the Constitution of
India
o Article 246/Schedule 7/List 1,2,3 were amended and the
entry ‘Forests’ was shifted from State List to Concurrent
List
Commented [h118]: Protection and improvement of
environment and safeguarding of forests and wild life The State shall
endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country
Commented [h119]: (g) to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures;

• Forest Conservation Act, 1980 (Read the Bare Act) Commented [h120]: 3

o Read Section 2 - Restriction on the dereservation of forests

or use of forest land for non-forest purpose

• National Forest Policy, 1988 Commented [h121]: 4

o This policy is a major deviation from the economic model

by advocating environmental stability and maintenance of
ecological balance including atmospheric equilibrium
which are vital for sustenance of all life forms, human,
animal and plant. It says that the derivation of direct
economic benefit must be subordinate to this principal
aim.

125
 o The tribal people whose rights were taken away during the
rule of the British and the subsequent government of India
(remember our discussion Rights to Previleges to
Concession) was given the responsibility to manage forests
through Joint Forest Management (JFM). Which indicates
the completion of a full circle.
• Intervention by the active Judiciary : Various cases including the
Forest Conservation cases
o The case T.N. Godavarman Thirumulpad v. Union of
India is commonly called as ‘Forest Conservation Case’. Mr
Godavarman filed a PIL in the year 1995 against
deforestation/conversion of forest land/unlawful timber
industry in Nilgiris. The SC apart from deciding that
particular case, by applying the doctrine of ‘Continuing
Commented [h122]: Joint Forest Management ( JFM) is an
approach and program initiated in the context of the National Forest
Policy of 1988 wherein state forest departments support local forest
dwelling and forest fringe communities to protect and manage
forests and share the costs and benefits from the forests with them.
Communities organize themselves into a JFM Committee to protect
and manage nearby forests, guided by locally prepared byelaws and
micro plans. The key element in JFM is that communities have the
power to manage the use of forests by members and also exclude
non-members. The benefits to them is direct access and control on
the use and sale of most NTFPs and a share in the income from
timber as well as other intangible benefits from local ecosystem
services – like water recharge, pollination, wildlife habitat etc. Thus
involvement of communities in conservation of forests and wildlife is
of paramount interest. May read more @
https://ifs.nic.in/Dynamic/pdf/JFM%20handbook.pdf

Mandamus’ left behind the conventional role of an Commented [h123]: 5

interpreter of the law and took over various roles such as
of the administrator, lawmaker and policymaker with
regard to forest governance in India. Moving away from
the adversarial role of the court in a common law system
such as India, the court took up the inquisitorial role. High
Powered Committees (HPCs) /Central Empowered
Committees (CEC) were appointed by the SC to
coordinate, monitor, implement the directions of the
court. Felling of trees were prohibited, plywood/veneer
industries became a highly regulated industry; inventories
and stocks of the standing as well as felled trees were
taken, quaries, mining etc in forest areas became highly
regulated, when forest is converted for non-forest
purposes, the Net Present Value (NPV) of the trees to be
deposited in a Fund Known as ‘Compensatory
Afforestation Fund’/ Compensatory Afforestation Fund Commented [h124]:
Read
Management and Planning Authority (CAMPA). This case https://forestsclearance.nic.in/writereaddata/FAC_Agenda/AboutCA
has so far witnessed many directions/orders from the MPA.pdf
court and it continues even after the death of Mr.
Godavarman Thirumulpad. Now this is a legislation known as Compensatory Afforestation Fund
Act, 2016
https://www.indiacode.nic.in/bitstream/123456789/2151/1/A2016-
• PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS) ACT, 1996 38.pdf

(PESA 1996) Commented [h125]: 6

o Refer to 73rd amendment of the constitution and
introduction of three level panchayat institutions
(discussed earlier in the notes)

126
 o To promote local self-governance in rural India,
the 73rd constitutional amendment was made in 1992.
Through this amendment, a three-tier Panchayati Raj
Institution was made into a law. However, its application
to the scheduled and tribal areas under Article 243(M) was
restricted. After the Bhuria Committee
recommendations in 1995, Panchayat Extension to
Scheduled Areas (PESA) Act 1996 came into existence for
ensuring tribal self-rule for people living in scheduled
areas of India. The PESA conferred the absolute powers to
Gram Sabha, whereas state legislature has given an
advisory role to ensure the proper functioning of
Panchayats and Gram Sabhas. The power delegated to
Gram Sabha cannot be curtailed by a higher level, and
there shall be independence throughout. The PESA is
considered to be the backbone of tribal legislation in India.
PESA recognises the traditional system of the decision-
making process and stands for the peoples’ self-
governance. Following powers and functions have been
provided to the Gram Sabhas:
▪ Right to mandatory consultation in land
acquisition, resettlement and rehabilitation of
displaced persons.
▪ Protection of traditional belief, the culture of the
tribal communities
▪ Ownership of minor forest products
▪ Resolution of the local disputes
▪ Prevention of land alienation
▪ Management of village markets
▪ Right to control production, distillation, and
prohibition of liquor
▪ Exercise of control over money-lending
o Refer also Samatha & Niyamgiri Hills cases (discussed
earlier in the notes)

• THE BIOLOGICAL DIVERSITY ACT, 2002 (Read the bare Act) Commented [h126]: 7

127
 o Refer to the discussion the Convention on Biodiversity
1992 and the two Protocols to the same discussed earlier
in the notes
o Objectives: Conservation of biological diversity,
sustainable use of its components and fair and equitable
sharing of the benefits arising out of the use of biological
resources, knowledge
o Read the institutional mechanisms under the Act and also
the benefit sharing mechanisms which is the main Commented [h127]: Access and benefit-sharing (ABS) refers to
the way in which genetic resources may be accessed, and how the
contribution of the Convention, Protocols and also the benefits that result from their use are shared between the people or
Indian Act countries using the resources (users) and the people or countries
that provide them (providers).Read more at
https://www.cbd.int/abs/infokit/brochure-en.pdf
• The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006/commonly called as the
Forest Rights Act (FRA), 2006 Commented [h128]: 8

o The Forest Rights Act (FRA), 2006 recognizes the rights of

the forest dwelling tribal communities and other
traditional forest dwellers to forest resources, on which
these communities were dependent for a variety of needs,
including livelihood, habitation and other socio-cultural
needs. The forest management policies, including the Acts,
Rules and Forest Policies of Participatory Forest
Management policies in both colonial and post-colonial
India, did not, till the enactment of this Act, recognize the
symbiotic relationship of the STs with the forests, reflected
in their dependence on the forest as well as in their
traditional wisdom regarding conservation of the forests.

o The Act encompasses Rights of Self-cultivation and

Habitation which are usually regarded as Individual rights;
and Community Rights as Grazing, Fishing and access to
Water bodies in forests, Habitat Rights for PVTGs,
Traditional Seasonal Resource access of Nomadic and
Pastoral community, access to biodiversity, community
right to intellectual property and traditional knowledge,
recognition of traditional customary rights and right to
protect, regenerate or conserve or manage any
community forest resource for sustainable use. It also
provides rights to allocation of forest land for
developmental purposes to fulfil basic infrastructural
needs of the community. In conjunction with the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Settlement Act, 2013 FRA protects the

128
 tribal population from eviction without rehabilitation and
settlement.

o The Act further enjoins upon the Gram Sabha and rights
holders the responsibility of conservation and protection
of bio-diversity, wildlife, forests, adjoining catchment
areas, water sources and other ecologically sensitive areas
as well as to stop any destructive practices affecting these
resources or cultural and natural heritage of the tribals.
The Gram Sabha is also a highly empowered body under
the Act, enabling the tribal population to have a decisive
say in the determination of local policies and schemes
impacting them.

o Thus, the Act empowers the forest dwellers to access and

use the forest resources in the manner that they were
traditionally accustomed, to protect, conserve and
manage forests, protect forest dwellers from unlawful
evictions and also provides for basic development facilities
for the community of forest dwellers to access facilities of
education, health, nutrition, infrastructure etc.

o Objective:
▪ To undo the historical injustice occurred to the
forest dwelling communities
▪ To ensure land tenure, livelihood and food security
of the forest dwelling Scheduled Tribes and other
traditional forest dwellers
▪ To strengthen the conservation regime of the
forests by including the responsibilities and
authority on Forest Rights holders for sustainable
use, conservation of biodiversity and maintenance
of ecological balance.

▪ Also appreciate the relevance of Right to Environment (RTE) & Right of

Environment (ROE) to understand the movement of the Indian
environmental law and policy from an anthropocentric/revenue model
governance philosophy to a sustainable development oriented
philosophy that appreciates the ecological importance of the
environment (including all its components).

129
• Conclusion: "When the earth is ravaged and the animals are dying, a new tribe of people shall
come unto the earth from many colors, classes, creeds, and who by their actions and deeds shall
make the earth green again. They will be known as Warriors of the Rainbow." – A Native Commented [h129]: Students of Sem IV –A
American Prophecy
•
▪

130