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ABOUT US. PRODUCTS / OTORe

Environmental Law
 General Editor
Abhinandan Malik
BA, LLB (HONS) (NALSAR), LLM (UNIV. OF TORONTO)
Environmental
Law

ProF. SATISH C. SHASTRI

LLM, PhD, MSL (USA)
Dean, Faculty of Law
Mody University of Science & Technology
Lakshmangarh—332311
Sikar (Rajasthan)
Executive Member,
Commonwealth Legal Education Association—South Asia
Member, National Legal Education Committee
Bar Council of India, New Delhi
Member, Indian Law Institute, New Delhi

Foreword by
HOn’BLE Mr JusTICE V.S. DAVE
Judge, Rajasthan High Court (Retd.)

EIHIC

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LUCKNOW
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While every effort has been made to avoid any mistake or omission, this publication is being sold on the
condition and understanding that neither the author nor the publishers or printers would be liable in any
manner to any person by reason of any mistake or omission in this publication or for any action taken or
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Dedicated to Munna and so called “Soldiers”
who are fighting relentlessly to save the
earth from environmental destruction.
The natural resources of the earth, including the
air, water, lands, flora and fauna and especially
representative samples of natural ecosystems,
must be safeguarded for the benefit of present and
future generations through careful planning or
management, as appropriate.
— PRINCIPLE 2,
THE STOCKHOLM DECLARATION, 1972
 Foreword to the First Edition

The first cosmic tourist, Dennis Tito, when touched the earth and came
out of Soyuz Capsule, he said, “It was paradise, a great flight and a
great landing”. He further said that he might soon publish a book about
the pioneering space adventure. This book when published would reveal
the first hand traveller’s account of experiences of Tito. No less educa-
tive had been an imaginary film “zoo1r: A Space Odyssey” screened as
early as 1968, and further no less is the picturesque description given
in the ancient epic literature of this country. Thus, ever since the crea-
tion of earth and the birth of man, he must have started envisioning
the flights: the flying in the sky, jumping into the air, wandering into
jungles and diving the depths of the oceans and all this they called by
different names in different civilizations. Day dreaming, night visions
and imaginative thoughts followed by experiments are, therefore, a con-
tinuous process since times immemorial and would continue so long as
man survives. When man achieves the desired result, he compares it with
the past as well. Stories and fictions are written, transcribed and pictur-
ised which people sometimes call fairy tales, while the present experi-
mented achievements are accepted as facts. When Life magazine, as early
as 1952, brought out the publication, The World We Live In, it started
with the words:
On some distant hilltop, perhaps half a million years ago, a man raised his
eyes to the sky and wondered. In that moment mankind became human.
Man began his ages-long search for truth, and left the other animals behind
in the grand parade of life.
Early man’s notion of the earth and the heaven remains a mystery to us.
Perhaps he thought of land and sky somewhat as the ancient Egyptians
did. For these people the world was an enormous room, the earth was its
floor, the sky was a vast ceiling supported on four great columns by the
gods, with stars for lamps.
We can understand such notions. The earth does seem to stretch flat
around us, towards the roll of the hills and upsweep of the mountains.
X ENVIRONMENTAL LAW

It seems very solid and motionless beneath our feet. Yet we know it is
a round ball spinning through space, wrapped in a blanket of air. We
know because we have been told. But is it not amazing that man ever
figured it out?
bik Shastri, in the present book, has taken the reader far behind the
Western concept and has given a vivid account of environmental ethics
in olden times and in doing so, he has made an in-depth study of the sub-
ject from the texts of Vedas, Upanishads, Smritis, Puranas, Ramayana,
Mahabharata, Gita and other mythological literature. The study of the
aforesaid, more particularly of the four Vedas, viz. Rig, Yajur, Sam and
Atharva, not only speaks of the entire science of nature which has been
handed over to the man by the Sages, Rishis and Munis with a hope and
expectation that the Dharmashastra, i.e. Code of Conduct and Rules
mentioned would require to be followed in letter and spirit. They said,
Prithvi is my mother I must love it, worship it and respect it; I must
worship, the sun, the moon, the fire, the air, the water, the trees, the
plants; and I must respect all the living beings, worship them in various
ways and must protect them as the totality of it sustains life. Combined
together we have the mountains and valleys, the oceans and the rivers,
the snow and the sand. This beautiful Prithvi pours upon us delicious
nectar and bestows us with flood of splendour. She bestows upon the
human being lustre and grants us power. The big question for introspec-
tion, therefore, is: Whether we have proved ourselves to be worthy of the
gifts of nature or not? Time and again we are playing with nature and
exploiting it to our advantages and the result is that we are destroying
the ecology and polluting the environment. Dharmashastras to modern
laws have been written from time to time for persuasive and regulatory
purposes. In recent years, the legislature has handed over various new
laws even Penal, restoring the concept of Chanakya.
Several authors have written commentaries and several hundred books
have been written on environmental pollution by now. At least a score of
them I have read and I also had the opportunity of writing a foreword/
opinion for some of them, but none of the past publications match the
present book. I can say without fear of contradiction that Prof. Shastri by
writing this book has done a great service to society. The book not only
shows his immense interest, in-depth study and deep love for the subject
and the concerned law, but he has also exhibited his excellent expertise
of the subject. Law books normally are of not much interest to the com-
mon man but the manner in which Prof. Shastri has started this book,
i.e. with Ancient Indian environmental ethics and growing consciousness
about the five E’s, i.e. ecology, economics, environment, employment and
equity, it keeps the reader’s sustained interest.
We are going to celebrate the millennium’s second World Environment
Day on 5 June 2002 and, I am sure the celebration would mark the
 FOREWORD TO THE FIRST EDITION XI

bringing out of this excellent publication which will not only enlighten
the reader about the law on the subject but also about that invisible force
that gives us wind, weather and breath of life, which now requires visible
human protection for which right knowledge and information have been
provided in this book. This would enlighten the reader and, of course,
“Right Knowledge of Self Is Bliss”.
I wish the author and the publishers all the best.

—JusTicE V.S. DAVE

Judge, Rajasthan High Court (Retd.)
 Preface

The joy of the author knows no bounds if new edition is ready to roll
in the market. It gives a special type of self-contentment and impetus
to the writer if the work is accepted and gradually demand of the work
upsurges. Therefore it is a matter of great gratification for me that fifth
edition of my book is in your hands. I am highly delighted and gratified
that book has been accepted and praised by the readers. This gives real
pleasure, peace and inducement to me.
Many significant decisions, on vital issues, have been given by the
courts since publication of last edition of the book. In this edition, an
attempt has been made to incorporate necessary and important judi-
cial pronouncements of the Supreme Court at appropriate places in the
related chapters.
During last few years, there is an awakening about the environmental
issues amongst the common masses. As a result of which persons started
taking interest in environmental issues and raising them at appropriate
forum—the constitutional courts. The court have also shown their keen
interest and dealt with them deeply. Some of the noteworthy cases have
been decided by the Supreme Court during last two years propound-
ing various principles and theories of environmental ethics. Moreover
there is a paradigm shift in their approach, i.e. from anthropocentric
approach to eco-centric approach to achieve the goal of environmental
justice. The focus of the court has shifted from humans to the protection
and preservation of ecology or the present species of flora and fauna
as it is necessary for the existence of mankind. The Supreme Court of
India has also adopted and implemented this eco-centric approach/ethics
in recently decided three cases —1) T.N. Godavarman Thirumulpad v.
Union of India'; 2) T.N. Godavarman Thirumulpad v. Union of India’;
and 3) Centre for Environmental Law, World Wide Fund-India v. Union
of India}. In case 1, the question involved was about protection and
£.u(2682). 3, SCE 277.
2. (2012) 4 SCC 362.
3.(2053) 8 SCA 234.
XIV ENVIRONMENTAL LAW

preservation of the “Asiatic Wild Buffalo” found in Western and Eastern

Ghats only, case 2 was relating to the preservation of “Red Sandalwood
which is found in Andhra Pradesh, stated to be endangered species and
case 3 was about the safeguarding the “Asiatic Wild Lion” (Panthera leo
persica), an endangered species. In first two cases the court explained
the eco-centric approach and narrated the necessity to apply it, but while
deciding the third case of Asiatic Wild Lion, the court started the judg-
ment with the application of “eco-centric approach” as they have instru-
mental as well as intrinsic value/worth. Commonly speaking, these three
do not carry any value or are not of much use to human beings, but
looking to their intrinsic value and that they are representative samples
of nature, the court ordered for taking necessary safeguards to preserve
and look after them as they are part of the nature—wildlife (anima!
kingdom). The court also stated the necessity to change the approach—
from anthropocentric to eco-centric looking to the vulnerability of the
species. Looking to importance to highlight; it has been incorporated
in Chapter 1 of the book. Thus a newer aspect of environmental juris-
prudence in India has been propounded and advocated by the Supreme
Court looking to its inevitability. Similarly legislative changes and role of
the National Green Tribunal in disseminate environmental justice have
also been narrated and assimilated in it at appropriate places. It is also
noteworthy that the courts have also started emphasising on “compen-
satory afforestation” and “compensatory cost” on the erring individuals
and institutions. The evolving concept of “corporate social responsibil-
ity” in relation to environmental justice has also been provided due place
in this work.
In updating and incorporating new laws and judicial pronouncements,
I got assistance from my family members—Dr Madu, Dr Sankalp and
Dr Megha, and my faculty members. I am highly indebted to them for
their timely assistance, cooperation and support in revamping this work.
I wish to put on record my gratitude to Shri Vijay Malik, Eastern Book
Company and his entire team for working relentlessly to bring out this
edition and extending their assistance and cooperation as when looked-
for and required.
I will fail in duty if Ido not acknowledge their under hindered support
and assistance to complete this venture.
I hope that this book would be useful and helpful for the judges,
advocates, teachers, students and research scholars. And in the last | say
“beseech you to give your feedback”. I welcome your valuable and pre-
cious opinion which will provide me chance to improve it further.

—PrRor. SATISH C. SHASTRI

 About the Author

Prof. Satish C. Shastri is a well-known environmentalist and is pres-

ently Dean, Faculty of Law, MITS (Deemed University), Lakshmangarh.
Prof. Shastri is also an Executive Member of the Commonwealth Legal
Association, South Asia; Member of the Governing Council of the Indian
Law Institute, New Delhi. He has an experience of 41 years teaching to
his credit.
He has also served as Dean, Faculty of Law and Head, Department
of Law at University of Rajasthan, Jaipur. Having done his LLM and
PhD from the University of Rajasthan, Jaipur and he did MSL in
Environmental Law from the Vermont Law School, US.
He was awarded first prize under Medini Puraskar by the Department
of Forest and Environment, Indian Government for his book, Dhwani
Pradushan. He had also been honoured by various institutions for his
academic achievements.
Prof. Shastri got the opportunity to visit and lecture at various legal
and environmental law institutions in India, viz. the National Law
School of India University, Bangalore; CPR Environmental Education
Centre, Chennai; Indian Law Institute, Delhi; Banaras Hindu University,
Varanasi and in universities abroad, viz. Humboldt University, Germany;
the United Nations Environment Program (UNEP), Bangkok; Waterloo
University, Environmental Studies Centre, Canada; Salford University,
Salford (UK); Dartmouth College, US; Vermont Law School, US;
Chulalongkorn University, Bangkok (Thailand); and Singapore
University, Singapore on various aspects of environmental management.
He also has the distinction to have been the nominee of the UGC,
New Delhi as a Member of the Human Rights Education Task Force of
the National Human Rights Commission, New Delhi.
He was also appointed as the first Director of the Academy of Legal
Studies, Bar Council of India, New Delhi.
Recently he has been nominated as member of the National Legal
Education Committee of the Bar Council of India, New Delhi and
XVI ENVIRONMENTAL LAW

Executive Member of the Commonwealth Legal Education Association,

South Asia. |
He was Dean, Student’s Welfare (1994-2001) and International
Student’s Advisor of the University of Rajasthan (1994-2001) as also
Chief Proctor of the University (1981-1985). He has also been Member
of Senate and Syndicate of the University of Rajasthan, Jaipur, Mody
Institute of Science & Technology (MITS) and Central University of
Jammu.
He has also been elected second time member of the Governing
Council of the Indian Law Institute, New Delhi.
He has also worked as Chairman of the Dean’s Committee (which
works in the absence of the Vice-Chancellor) of the University of
Rajasthan many a times.
He has attended several national and international conferences, semi-
nars and symposiums in India and abroad and has organised more than
14 national seminars/conferences, three international events. He has
also presided sessions in various national and international seminars/
conferences.
He has authored and edited nine books—Environmental Law (2012);
Pollution and the Environmental Law (1990); Noise Pollution: Its Legal
and Scientific Perspective (1988); Man, Nature and Environmental Law
(1988); Hamara Paryavaran (1995); Industry, Environment and the Law
(1996); Dhwani Pradushan (1999); Human Rights, Development and
Environmental Law: An Anthology (2007); Future of Human Rights,
Duties and Value Education: A Realistic View (2008). He has been Chief
Editor of the Journal of Legal Studies (2004-2007) and the Juridical
Sciences (since 2008). He has also written more than five dozen articles
in national and international journals.
He has also been referred and quoted in more than 13 Indian and for-
eign books and journals.
 Brief Contents

IE Oe eee tS ce ak hee XXXVII

Important Statutes, Rules and Regulations ............. LI
cE GE i a en ew eee nes LIII

1. Ancient Indian Environmental Ethics .................. I

mi Pometion: Camees ah Kinds 3. . 4.5 cas 65eee4a520545% 21

3. Need for Environmental Law: An Indian Perspective ..... $5

4. The Indian Constitution and Environment Protection 55

5. Environmental Pollution and Control Under

Oo ge Lele ieameaiog ie hid: a-ak. ae de ene IOI

6. The Environment (Protection) Act, 1986 ............. 123

7. Law Relating to Hazardous Wastes Management:

An Indiap Peaitet toons CALISES Ab? HAN DS..<..- 205

8. Noise Pollution, Public Health and Protection ......... 235

| 9. )Water ee EO Le Se ee ee Ee as

Yo. Air {Prevention and Control of Pollution) Act, r981 ..... 309

Sa, Pameee ae OUser vation LAWS oon oo seek see aes 347

Ea, Wiromie erocection ard tie Law <5 .3..2.85 0.000 Ck

1%, Coastal Zone Management in India ..........+.560+- 427

14. International Environmental Law ..............----- A4I

XVIII ENVIRONMENTAL LAW

APPENDICES

1. Some Important Pronouncements > os 5-4 +9 2. pee 475

2. National Environment Poliy,.20667) 14. 52.977

709 Fe 519

3. ‘Towards aGreesier Tomorrow 2. ... oo. ees |.Es 567

SUOJOCE UIE 5-0. 6 one n.0ia ue& Sah ve ols Darhte ee 581
 Contents

NS EE VEE ETO CI Ee OTOL XXXVII

Important Statutes, Rules and Regulations ............... LI
tases ahaa nye at ena i a ee ar emai aerate LIII

Environmental ethics in Olden times... .. ... 4. seuss ss one es 4

Annals. birds and findy wav Or [ile oo oa oo a wa ae oa 2k 6
Environmental ethics and the Constitution of India ........... 8
NN AT ne a kb eR ee eee II
Anthropocentric to ecocentric approach: A paradigm shift .. 11
OODUICCEGNS AICORCR, wr curs s wernertigeni*
© 65 =229% 12
NE Sis Sos oc «Se OR eae ok S 14
Ae Sa ee On de ee ee iene 6 os ox se 18

2. POLLUTION: CAUSES AND KINDS

Causes of pollution and environmental degradation .......... 20

Wiatural-causes SY 938 Ye PPS Ee EE TP PIO STEDR: 21
Man-inade Causes: ooo fs eo UEIINOUYOT DAS CIUSY PS OF 1 21
Population grewe! 709929) DNS. WGN Dae BOLT. ta (naa 21
POverey. 22 SR any Ad. .12909. O11 DOP SHE AO 22
Uirhdiiiesttets sucsiAomoguvas mcooh bas 2uciadulee o6.1¢ 23
Di td, Bin ators 044 4 0 53 Het ds 26
Minderot-melhiteiin .26.456 soaseons . ..1 SEO AAR 200, 28
Diakitesi aacliation aca 1 COME OT FIRS ALBEE. ARR 28
Mairiiade pollutiowiticnis sia bc. acdbomes lamolinn ie hee one 28
ROG is avdali wr eee. sad OBBes wan 28
XX ENVIRONMENTAL LAW

POLLUTION: CAUSES AND KINDS (contd.)

Water pollution ....+ 50+ signee 0+» a epee
Land pollution .....- 0.0 -ss9 ++ ose pee
Noise pollution... ... 2p; seqey -} + +e ee ee
Radiation and radioactive pollution ........-+-++++++-

3, NEED FOR ENVIRONMENTAL LAW:

AN INDIAN PERSPECTIVE

Tiwari Gommittec; 1980" 2... ~ 2. 64 eo eo) eee

“Magna Carta” on human environment .......--+++-+++-+
“Our Common Future” and its effects... . . sis oe oe
Fadicial viet: 2). sree ekeate lent 66 Se eo
“Gilent Valley GaSe 2 x2 dou ais spas clas 2 oe eee
“RDER case? TAIMAN AI
AALOUI. OER 2 Aoe...
tNM
“Bhopal Gas Disaster Case”, 1985)... «+. + ae ws
“Oleum Gas Leak” case: a case for hazardous substances
Other factors contributing to passing of the Environment
Protéction AGEPESSG R
TORn E eee
Sa

4. THE INDIAN CONSTITUTION AND

ENVIRONMENT PROTECTION

Constitutional and international obligations ...............

Constitution and 42nd Amendment of 1976 ............205-
Environment jurisprudence and protection of natural resources .
Right to live of endangered species and obligation to save them .
Right to pollution-free and healthy environment:
fundamental right
Right,to equality and environment... . i... ~. ..25¢HWas abaendiel
Freedom of trade and commerce and the environment
Right to life and right to clean, healthy environment
Right to salubrious and decent environment
Baghtto shelter... 262 cse¥sc ose serenessc eee d
Some, finer, facets.of right to life... ec. ck .
Endangered species have a right to life e © @ 6 6 GPS). 6. ©FE2670 1G @ ser eee

Right to constitutional remedies and environment

“Godavarman” revisited oer Teeeertevt € HT ¢ HF Ce Oe 6s ee es Oe eS of eee
 CONTENTS XxXI

THE INDIAN CONSTITUTION, ETC. (contd.)

Sones OF Drecautionary Dtincinic .... ......
2nasnst-bnG.alos 78
we wo orn wm alpen 80
Pollution fine (exemplary damaacs) .... noe ee ew tee 82
tee ie i: oes. ae <n 83
Exemplary punishment in case of contempt of court ......... 86
Gerporatesactalrespansibality ............ n0ie2o29ue kedinalos 86
Meanige: af Ciro csyq inaigolnos cris iuid dew ewalinisd. boc 87
Contemnor to be punished strictly .................00.. 90
Directive Principles of State Policy and the Environment ...... 90
pasrnie ete ee es eer. SRS et 92
ee OU BNee O00 ENON ACEI ac kw ns bp sp ko eens 95
SSS arr cgt 5 et 2) hn nh da ee a 95
Fundamental duty of citizens and the environment .......... 97

5. ENVIRONMENTAL POLLUTION AND

CONTROL UNDER OTHER LAWS

Prvitonmental, pollution as @10ft\s .. .5 - sm - #oee dds os ee IOI

Tort of nuisance and environmental pollution ........... 102
AIOE 6 ncn tid no pee be oe Oboe ee ng BAe 105
a ee ae ee re 106
Doctrine of “strict liability” and “absolute liability” ...... 107
i ia a ae haea he a oN Pi nee aha ad's 109
Related provisions of the Penal Code, 1860 (IPC) .......... 109
Provisions under the Criminal Procedure Code, 1973 (CrPC) . 110
Section 133 is independent and different from
Stier pollution flaws PoE 20N? ZUOUT@8 TUINIAAS
AREL, 114
Condition precedent to apply Section 133 .............-- 114
Pe A Ga Sh ease eeaa tense 08 eee 4s 115
Pemic Lisvaiey MIGrARCE ACT, TOOT. 2.6. ope pi ce tee epee ay rity
National Environment Tribunal Act, 1995 .......+++eee08: 118
Statement of objects and reasons .... -tisvienndiessdtoo: 118
Penalty for the failure to comply with the
rere cre CriDtAE Ps POPS. es dahkaap nat 119
Environmental pollution and disaster management ......... 120
XXII ENVIRONMENTAL LAW

6. THE ENVIRONMENT (PROTECTION) ACT, 1986

Objects and reasons ... 66 eee oe HAG GIA ee aie 124

Béology--iccccecc cesses cts ete re7
Fcosystemti: <0. God Ss poet = 128
Structure and function of an ecosystem ..........-+-+-+-+- 129
Functions of eéosystemss 21903 1) 2259. 01 AR er Tae 129
Ecological sucéession .~...<+« + =. FUME eat eee aaa 130
Food chain, food web and the ecological pyramid ........ 130
Ecological pyramid........ #tonde budemua7 d.s ¢ae
1ogam 131
Kinds. of ecosystettiy.2..od +n -iaiindete ie es oe ee 131
Terrestrial ecosystem .0 can Ste: >: + age ee 131
FOresecOSVStEM 0.26. bids. 3k sales se228 oe 132,
Grassland: €COSySICI..). <4. + - 2 235 a> vip Sp eee 132
Piesetecccesvstem. ©). fii. Sa ees os 134
ARGUE CCOSV emu ce ne ss ss 3 ee ee eee 134
Ecology and environmental science: distinction .......... 135
What is “enwicomment7) ia4. ts 7as SARE EEE ee - 136
Déefinitions.[Srvdn BAHT O BAGH JONTMO «.OD
2. ee. 537
Ty ATTRA 5 Gane Sano eg ks 2 Scai'e “he = ed
Environinental pothimaiat 2... c+. < sxe 507 on ee 138
Ait POHUEAREG es ed oe wee ee ee 139
EAM OOMOINS 5 et el ee ee 139
Widies pOMlitatont ogo! Roleoo hsseo ieeee 139
Phyienhinental Pouwnen ac. wk pase scl se ee ee 140
SO a a SME Oe RL ME I4I
Pollution; meaiing@ os) 70.) 509 ay Jo snoieiendg&4 142
Handle, +0. bol} suasops Alesina ads eae 143
idazardous substancerc;assiiihy bas sachnaasbene s
Sen eee 143
Electricity as hazardous substance avws:) seniorsede . 143
Occupier 1b 2: - Set en ee win 62 tnsheuwers Beetenes 144
PECSCWeG, -.-. . 3s ce ceeeaue | CeCe ae ae 144
Environmental impact assessment (EIA) ................ 149
Mandatory Metiod ..:... 54 etre ee eee 151
Discretionary methodty¢! ;2/, |S. aaee AS eee 151
Cost benefit analysis: :: : ;. 2 e¢8e" bop aad inemee 15
International convention on EIA in a transboundary context 152
Indian model
 CONTENTS XXIII

THE ENVIRONMENT (PROTECTION) ACT, 1986 (contd.)

Environmental Clearance Regulation, 2006 ........... 154
Validity of environment clearance .................. 157
Review of EIA by the judiciary?) 6.29. 209) 2d eee 158
Need to-review.the notification: «7... 28 PY. oe see os 158
Appointment of officers and their powers and functions ... 169
Preventive measures for industrialists, etc. .............. 172
Furnishtas oh imtormation -.: ssc c shee MOM: 179
Control measures: powers of the Central Government ..... 180
Duty of the person carrying on any industry,
QDetAlion. OF process. cic... .-... efor eau talesuns 182
Proceduse fat earch and SIZUIG! ..65)~ os cee ticeiveadr ea: 182
Power and procedure to take samples ...............05. 183
Environmental laboratories and analysts ............... 185
Abatement of environmental pollution ................. 186
Liability and punishment for the erring person/
Cinirem RIOT AROS, a cs ig 5 is e's as ens whee es 186
Power of the courts under writ petition ................ 188
Protection of the government and its employees, etc. ...... I9I
Power of the Central Government to require to furnish
information, répért-or retu#tis?) 55 DS POPs ble. Fe, 192
Effects ohothes-lawss. (rns salleT te iannd.) bas eebaaisss 193
BORIC I ERNE Se nll. udopeakess) ies: se8a6 215 hi one 196
National Green Tribunal Act, 2010 ............ eee ween 199
Aims and objects of the National Green Tribunal Act, 2010 . 199
Constituent cr the triblinal Oise PEO oa cgN spe ay 200
PNGMMNCATONIR CTS SOAUEIA a UICG TONSA. sca aceeas ess 201
Jurisdiction, powers and proceedings of the tribunal ...... 201
Relief compensation and restitution ..........+.++e0-8- 202
Rggesk> sSiAea PIA TSE)
teO RATAsEO 203
Penalty and punishment ...5...... ebb 04 dee eee
.. es es 203
Levy of one per cent court fee 6.5. eee.. ee mens 204

7. LAW RELATING TO HAZARDOUS WASTES

MANAGEMENT: AN INDIAN PROFILE

Hazardous Wastes (Management, Handling and

Transboundary Movement) Rules, 2008 ........-++++-. 208
SCameok MePCRANISH, |... +0 ce eo 6 - PQIIWNOG BE. Va 2 0k 209
XXIV ENVIRONMENTAL LAW

LAW RELATING TO HAZARDOUS WASTES

MANAGEMENT, ETC. (contd.)
Authorisation for handling hazardous wastes .........-+.
Procedure for recycling, reprocessing or reuse
of hazardous waste ......«#iott eee
nea tmem eee
Import and export of hazardous waste ......---+++++++5
legal traffic. ....,.4..5)5 atl enaonini tot eee ee
Liability |..20.cec4-..<+. e +.
++-++
> -eenisele eee
Constitutionality, of the; rules)..4+4s;-2099;0tses i
peer ean
Manufacture, Storage and Import of Hazardous
Chemicals Rules; 1980... <.+2...»d. 2232009 ie Ae
Rules for the Manufacture, Use, Import, Export and Storage
of Hazardous Microorganisms/Genetically Engineered
Organisms or Cellgung8ee Cons DESIST
Bio-Medical Waste (Management and Handling) Rules, 1998
Plastic Waste (Management and Handling) Rules, 2011 ......
PUMI@ENIOS os slo Sees tetas Zs 1 oun a car ee a

Batteries (Management and Handling) Rules, 2001 .........

Water (Prevention and Control of Pollution) Act, 1974 .......
Factoticossmctemegeige 822 2st irl
Penaltyunder the Factories. Actow... 324 \eoudgess)iitbee
E-waste (Management and Handling) Rules, z2orr ..........
Public Liability Insurance Act, 1991
Municipal Solid Wastes (Management and Handling)
Rules, 2000 bea pl A de a EL I, OB Se eee fut ah YN Re, KT Ye Se ee ee ee omy i

Hazardous wastes, toxic chemicals and judicial activism

Atomic or Nuclear Waste
Third World countries BOS Se SO ee OO Se Oe: es! SS ee eee ew ee Te eee

8. NOISE POLLUTION, PUBLIC

HEALTH AND PROTECTION
S% SSS 8p APE SES RR Sh OOS) Beets] Sena wae oe et kee et. UP Rees

SANE ENS ENR LGES ASE UL SRG) M ee OS Aw le eee ik ee

 CONTENTS XXV

NOISE POLLUTION, PUBLIC HEALT, ETC. (contd.)

Effects of noise Sees > AS 8 ING! aSbay 012 240
Psycnolesical etlects muni. saw Lak saouwoad woos 240
ee gh 241
Protecnion tronr elise PONMUTIOR cto ...e< > nde ee imersiacne 242
Dom -leststative MeASUFCS <-- adye
> AAinretincee 242
ee a AE en es 243
I PEE ON a oes verter pp an hives ast nee 244
Noise control under the Penal Code, 1860 .............. 246
Noise control under the Criminal Procedure Code, 1973 ... 248
Noise control under other Statutes... . 0 0 «do ese na cnee 249
Ne ne oc 249
Noise control under Railway Act, 1890 .............. 249
Motor Vehicles Act, 1988 and noise control ........... 249
Madhya Pradesh Control of Music and Noises Act, 1951 . 250
Bihar Control of the Use and Play of
CRER RE BE nk so ss ony At oe vie nile 250
Orissa Fireworks and Loudspeaker (Regulation)
i ee, ere Se Sara ee as Oa eee oa sie Se 25%
Rajastiian Moimes GOntro! Act, 1963... 25s ee oe og os 251
Bengal Motor Vehicles Rules, 1940 ............--.-- AG
Uttar Pradesh Nagar Mahapalika (Prohibition of Noise
and Regulation of Loudspeakers) Rules, 1987 ....... 253
Environment (Protection) Act, 1986 and noise ......... 254
Noise Pollution (Regulation and Control) Rules, 2000 ... 255
Fire crackers, festivals and noise pollution .............. 258
Rules for crackers manufactured for export ............. 259
ied ON ACTIVES EE IGEN SS se ca sas eta oe AE is es 260
The Indian Constitution and noise pollution control ...... 262
Right to religion and noise pollution ..............-.-. 263
Exemption/relaxation teasonable «¢ : 26s 26255. 2290.2, 265
Articles 19(1)(a), 2x and noise pollution .............-.. 266
Public interest litigation (PIL) and noise pollution ........ 266

9, WATER POLLUTION AND THE LAW

..
eee eee
Right to water: part of right to life ... 2.6.2.6. eee 273
Old texts and impurity of water ........ 0.000. e eee ees 274
Beer iawis. 2... . Janae St! bes.sonmst NLsi03
io.w
16.2 275
XXVI ENVIRONMENTAL LAW

WATER POLLUTION AND THE LAW (contd.)

Action. under law of tort... .. 2... 606000 +eo + sQea anaes

Statutory provisions and water pollution ........-. MIKES
Water (Prevention and Control of Pollution) Act, 1974 .......
Constitution of the Centtral*Board “. . -3.. Sa «ee eee
Constitution of the State Boards’ 2... .s.. > os pa a eee
Members, officers and servants of Board
to be publie'servaits: 6500 65 tt tos hae 2 eee eee
Disqualification of the mendbers .... . 4c + Gan «erg ae ne
Functions Or tie Cemtrat pOald =... 2 > ars 4 oes Se
Functions of me State POaLds .:. . <2. ss «> a eee
Measures to prevent and control water pollution .........
Power of the State Government to restrict the areas
for the’ application or tHe NCE a.: ss 55+ wena eee ee ee
POWEL CO GDCAIT TRFOFENAGION 3... vss Go ea ees Ge ee
Power to take samples of effluents and the
procedure tobe followed... . 0s <p oss See ee
Power of chtry ame mispection ~~... .. + s5 5.54 eee eee:
Prohibition of use of stream or well for disposal
Oh poliising maatheks ClC: 2s tae wn: ho aie BUN ee ok care
Restriction on new outlets and new discharges ..........
Jott| | a an a ae Ma” a dirarh he <a
SLESTS, eS Ree ere gay PRE ene hire Bge ee)
Furnishing of information to the State Board and others
Power to move the court for restraining
apprehended-pollution Of water. 44.5 64 025 geuals deca Beast
Bower td give dinectioliers. .cowsct Ben Eee 8
Funds, accounts and audit oe Op) @) 2) Of oF pie sorgd, le} GI*ey Sree £2 eyen 6 Pave de ae

Central Board 2 © 66 8 (8 @ @. 8 S7CS RECESS) at's Sie Pe seel erate 63a) Soe) wae ated Shee s

State Boards of Ce & eS © 6 6 © 8 RM Ri elie ie) s> te “te Sys) io) Sie! fb) le NS el Feel hier eee

Budget +. 5% % 8 2 8 © es 0 © CFS RS Teta te iets “Selale Sheba to fa ahiee bt a bibel «ake ee

Residuary, penalty claase- ..... .. . yas

Publication of the names of offenders
Offences by companies SES OSes OM NS Sy ws Oe RD eae ee oc ee

Delay no excuse to waive responsibility

Offences by government departments
 CONTENTS XXVII

10. AIR (PREVENTION AND CONTROL

OF POLLUTION) ACT, 1981
Central and State Boards for the prevention and
COMtrol OR bit pollution 1.5 cies. coc setae giarexreh axiles
fe eaiae ces, wiaricem «. 5«1a. +0iesi22usl. Visidiia
tee WARES icoewe © sc bid ce ce ck ke -ONAGMOD ve esonol
Disqualification of members: s:i2wean i8q) won ove.
). 2008
Meeting Of the Board... . sonziio to sonssingoo.bas mumo.s
Powers and functions of the Boards ..............0.00..
Functions. of the Genital Boaadsoyolqr2 bas.aiz2ttn, 23admn:
Central Board to give directions to the State Board .......
Power of the Central Government to give directions ......
Pumetions of the State Boatd.aise x stiare 66 erage » AUPOMBULIRR:
Measures to prevent and control air pollution ...........
Power of the “State Government” to prevent
AEs IU AEE PROMEEC oss ss AS set 9 hs ae ec
Powers to declare air pollution control areas ..........
ner COmirol mcasures ii Stich afeasS "S225 Por. ono.
Power to give instructions for ensuring standards
for emission from fautomobiles? 4 +<, c24 eee ote 63 ss:
ee aeee RnR <2 he ee fs $2 ft te eee eee ps Se
Power of the State Government to appoint
VCR Wap Ste Piidiiiihda rey arse.
Powers of the State Board to prevent, control air pollution ..
Power to give permission to operate industrial plant
ian air pollprion Comroratea ig ss oe
Power of the Board to make application to court for
restraining persons causing air pollution .............
Power of the Board to take remedial measures on
receiving information of emission of air pollutants ......
Power of:entty andinspection»: iy. D2 IA SARE ST Pr...
Power to obraim mirormation 426839 Pie, 298 PETU eee ot
Power to take samples of air or emission and
tne procedure'to be followed. ... ..28a :. ern
xollod seen.
Report of the result of analysis on samples
OM NINS SOUUNY 3.6 once os eh a bs ee eine ees
Pier tar SereteerlONS ics 0 Tiel. lee eee ees
Directions of the Pollution Board should not be interfered ..
Pines aceosiits and audit. 63 wale nubiDin
leso6 esi.
XXVIII ENVIRONMENTAL LAW

AIR ACT, 1981 (contd.)

333
Penalties and procedure .....--++seereceercesrrncees
... . fxthnala avid @i g@sau
160) Pie eeleeeet 333
Penalties...
Penalties for certain aCtS ....- eee e cere reece rete teens 334
Residuary clatise’ .. +... 0. 006s es 1d ee 334
Offences by companies ...... -.
+e ees ose 0ee ae
cess-- 335
Offences by government departments .....--+++++++5+5: 336
The court and cognizance of offence .....-.+-+++eeeee- 336
Protection of Board and its officers ....eee ..-- eee eee 337
Members, officers and employees of Board
to be public serwanes?. orlisdt. accisoads seiguot-ineed age 337
Bar of jurisdietionsrib. ewes dsauinnr at o voehhw)
ee gee $37
Miscellaneous?’ o.ce 4 ie Se ss ee ee Bet fo oleae 338
National Auto Fuef Pokey Bh (ONES 0 Tie od Ae ees 342
Euro/Bharat normis 299 02. SUSU U2 Ge", EE, . 2 eee 343
National Policy Of BIQhUels. se. ok 5. acs waa» oe 2,= ease re 344
WicOMiaiK SGREMIC: Sao eS oe we hs + og ge 344

11. FOREST AND CONSERVATION LAWS

PRSEORICaLDERSP CCIE ge Raa Soa aa ie ee i Se a 347

Biisewperiod ...% . esses. 2 so src.+ oe eee 348
Leonie CS ORELe. Se nee Re Smee ere wet ro! Oe 349
pebter: HAG SD CISC a ae 356
Forest (Conservation) Acts To8QUBCA) aca ti. oia a jen ae 356
Now-fogest DimDOse cot a ot ise doce elena 357
Constitution of Advisory Committee .............. 358
Judiciary and the implementation of the Act ........ 358
Séction, 2: a HOR-GbSstankejClaysei, anicsoyvtur oR eisae 360
No retrospective effect -< ; ..a:rtguachine
bere cee es 363
Scheduled Tribe and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 ............. 365
National Forest. Policy, 1988. . ... . dcsieliea.acl
et siutiaodag ark 369

12. WILDLIFE PROTECTION AND THE LAW

Wild Lifés(Protection) tAct) 19722 0a8.j uu) Do ae ie, aoe 375
Hunting of wild animals
 CONTENTS XXIX

WILDLIFE PROTECTION AND THE LAW (contd.)

Grant of permit to hunt for special purposes ............
Prete On OF Checifed manic. « . . «keh <ile bo ciniereiscre
Critically Endangered Species (Ecocentric approach)
Conservation and its management ..................-.
MN rr gc ces 5 Yacadet tncmsdi Arwnesatoveancns
Eg | lg, hg a aan ee Danae a
IS ice ne Oe eS Skee To os oS So
No right to live in wildlife area without
Permmiseaipicemae FI, SEED ec eases
ee ae ee en ee eee a
ELAR OTe ee
Central Zoo Authority and recognition of zoos ..........
National Tiger Conservation Authority ..................
Tiger and Other Endangered Species Crime Control Bureau
Trade or commerce in wild animals, animal
articles and. trophies prohibited, f gcivc. a Bod hn ans
Prevention andi detection OFFENCES oa... .ia.e.-. vecscersscquenaloes
Midex powers for investisatiGe. Joie Focieaecords, «e+ hei
PURINES of SULA Fan a.nd Wlincs «469 >3 ..0acdsageSasngncas cases
SARTO AARE COPE MICE perme wscice:y sph Fo BRUTE aces os
BERIT EAI. GIB OS rics 5 ooo oo95 Sa 6 ella 90 slp see
POwer £0. COMPOMNE. ONENEES «or crinek Lae eeerys = 2 x4
Coctation Of otucmiaws net barred...) .....+0 0.68 sow. ited
Forfeiture of property derived from illegal
hugisend trade 1145-0). 6 AN -AWOR AT OA. Ee es
Appeal from the orders of competent
A ale a: aa eran argent anger atherrtmes.— acoaaam
ot £8 Ty Sidi ara rae sondage dee orearity eemaivaburs..
Punishment for acquiring property in relation
to which proceedings have been taken
nai gl Sa ae ae gear ie ea a ir aT
Ditelices by companies “SPP 2.2 P P23
Peapiioner cewat S59 I PRET a TO Oe
Ricwncd bythe SHRED OP FOR? SURI PSUR ee
Rights of Scheduled Tribes to be protected ............-.
Power of Central Government to make rules ............
Power of State Government to make rules ............--
XXX ENVIRONMENTAL LAW

WILDLIFE PROTECTION AND THE LAW (contd.)

Prevention of Cruelty to Animals Act, 1960 ....+-++++s++05:

Constitution of the Board .......--++erece eeeee eees
Functions‘of the Dodtd 20. 2 eit vs ss eee eee
Treating animals cruelly .... 2s.. -
ee eee eens
cece ..
Destruction’of theanimal’ : i: :.7 2 iis22.<see7 ane
Experimentation of animals ...... eee e-.
eee .- ee eee
Perfotming antiwals ‘2.2. ics. 2222s 31 eae see
Pemgley) «..<cjssh dues coe k vse a nao 9 2g ace
Pn firAles noe cis c guess ioe bie.ake 2 ences as ee ee
Prevention of Cruelty to Animals (Slaughter House)
Riles. 2008 5 oc0¢ 5 Noto. sade 3 ee
Biological Divetsity met O02. tn. 45 6. a: a vel ee ee
National Biodiversity Authority (NBA) ...-........-...-
State Biddiversiey beara (Spb) 30 HONS TAS Pe. wee ee
Biodryersity Mianagemicm omunitcec’ : \".'2). 17) JERS
oe
Duties of Central Goverament - 2. hs 5. as eee ee ee

Protection of ancient monuments and public parks .........

Ancient Monuments and Archaeological Sites
god Kemains ch, 1UG6 .5. 3 | Gi sc ale ee
Pi CED AB Nn Se es wk a ee a ee

13. COASTAL ZONE MANAGEMENT IN INDIA

Coastal Regulation Zone Notification, 201r ..............
Objectives of CRZ Notification, 2o11 o 8. Oye * 8 6 Clie 9 ls 206 See oe

Physical limits of zones dS ee oe ee ee ee ee ee co ee er ee

CRZA see ee 8 88. OB FEL CL CS Bee case oye wi fe leet fr Jer el Ke Wie ee ae eo. cele ee ee

CRZ oe S 8 Oe 0 EO BT oS Ue Se BETS 8 \e 0, @ he Weele lace bee be cnet pee

ere ee 4 ec 6 2 ee ee 6 8 8 6s 6 eS 6 G6 le et eft Efe fe te te he Ue be ee One

CRZIV 22 2 © ee e te © Oe © GS eS se © 6 0 4S > Fe) bie Cis ee ot ee eee

CRZ V: areas requiring special consideration

Prohibited activities
O OF O. Dieta te, we S.C bes af 24 16 t6 ye eh ee 2 Be
 CONTENTS XXxXI

14. INTERNATIONAL ENVIRONMENTAL LAW

Pemern tome peceemective: 22: errs seccde ccs. NREL AeaMOTl pic 441
Development during 1945-2003 ...2.... 00.0
..0.
ccee aes 442
Sources of international environmental law ............... 443
Treaties, protocols and conventions ................... 444
Smuscamint ytetetmateiatiaw 500 5°555
0 To ee
5 444
dnditial decisions OPTI 2E [SUOUS DAE HIS
NONUNTENI
O! A 445
Tite cen eee et eee 446
France v. Spain (“Lake Lanoux Arbitration”) .......... 447
Moacknoiny Declaration, 1972‘: 2:2 2 2:
YR Senn ee 448
Important conventions/agreements/reports ................ 452
eoccnolm (enfetrence, 1a 7Z10MS91 A... a se 452
Qur. common -furare: 44 40)340)00- THA ATS Ab SRARO> ss se 453
en aeeN Noe Pe Oe, Se ae 2k oe eS 454
UN Convention on the Law of the Sea, 1982 ............ 455
Vienna Convention on Protection of Ozone Layer, 1985
ane wiontweal Protas. TOR? * 22 artes oss, £29 4 456
Convention on International Trade in Endangered
Species of Wild Fauna and Flora, 1973 ............... 456
Bonn Convention on the Conservation of Migratory
Species of Wild Amimials;' 1979". 002 62 8 Thais eid. toa 457
Convention on Wetlands of International Importance,
1971 anid 1982: (Ranssas)ieisi.laistes.
to slafaniva act aarlres 458
World Charter. for Nature, 1982. igoouue foue mu oisisouigge 459
Nairobi: Gonvefition, 798 FY 0VP) JOGA IL EI 1 a 460
Earth Summit: The Rio Declaration on Environment
and Development, #992!) 9209) 92 JU, 32828 820 Q1R pps 460
Mes a4: + ONE TEL WOOD SRO Pea? 10 DI 461
UN Framework Convention on Climate Change, 1992 .... 462
Convention on Biological Diversity, 1992 ...........++5- 462
Cartagena Protocol on Biosafety, 2000..)...5...00 6062. re PES 464
Nagoya Protocol on Access and Benefit Sharing, 2010 ..... 465
International Year of Biddiversity. Vi. 466
International Decade of Biodiversity .. 5.552.250... 0.005. 466
World Summit on Sustainable Development, 2002 ........ 467
Johannesburg Declaration on Sustainable Development .. 468
XXXII ENVIRONMENTAL LAW

INTERNATIONAL ENVIRONMENTAL LAW (contd.)

Kyoto Protocol, 1997 ...+-+ +s

reec ce
e etre ens ree
e ee
Clean development mechanism .....--++++e rene
eee +e
Carbon Credits 4.4 «s+ wis 00 ne nn 0 oe eee re
Indian Constitution and International
Environmental law! oi. « «s+ 4 ae uqits o/ecse pea

Indian Constitution and international agreements

and déclarations \.......¢.i «4s 24: 4:2 4geeeenie ieae eee
International environmental law and its application
into the domestic law ...:. i... . cso. sepa

APPENDIX 1

SOME IMPORTANT PRONOUNCEMENTS

Case No. 1
CHARAN LAL SAHU V. UNION OF INDIA, (1990) I
Ye ee ITS SOTO PRI
Right of the Statextowepresent ‘the! victims: 13210. Sa. GQGbNeke
WActis. not arbitrary,....€52%..RI0L! DOS.GaURE PUM I0.2909Re
Liability of shepareit company is2n..). 27.00 nebne wie. 4B
Basis of this. steht... andes... 2T@! .2iemnl. GU JO 20eee
Not. violatweof virpicle agonsarzial to. zhnaba an. seen
Whether the principle of natural justice is
applicable in such situation? «fer. .custeMi sel aotied A he
Principle of natural justice not followed—
but no. waong dome sts. msiietedentl i Sag asteeesbeen
Post-decisional hearing will do more harm ..............
Quantum of compensation: how far sufficient? ..........
Recommendations

Case No. 2
M.C. MEHTA v. UNION OF INDIA (“OLEUM Gas
LEAKAGE OR SHRIRAM FOOD AND FERTILIZER CASE”),
(1987) 1 SCC 395
New principle of liability Per 6 8 Ok Cnet! Ste eee (OMS. S Me! 6) *) wee) See ee

Measure of compensation SSR Ae BU! 0) 8 8 SIV F CLA. ® @) € ie 676 76 te eee be Pe

 CONTENTS XXXIII

SOME IMPORTANT PRONOUNCEMENTS (contd.)

Case No. 3
M.C. Menta v. UNION oF INbIA (“GANGA POLLUTION
SASEC Regen) Te SOG ars | SSMS Hits efssonos isimomnoty 489
Sees teem ce Ae ies ec oeee, AQI

Case No. 4
M.C. MEnTa v. KAMAL NaTH, (1997) 1 SCC 388 .......... 492
eee EY MARLAIS, MARGERY SYSECINS, 2. es ae 492
PRR Cena aCe OES an we ie em = gs sn oo 493
le ape eg. = tag aang Ree ae Neagle Ae aoe 495
ecg eT iain arpa Rabe hed etait hc, LaPeer ae 496
ME RR Re ced: out -6.i% Gad sa aata oie cate es 496

Case No. 5
RURAL LITIGATION AND ENTITLEMENT KENDRA,
DEHRADUN V. STATE OF U.P., 1987 Supp SCC 487 ........ 497_-
oe EES LE Re
ee a ee 497
eg ee eeee aa 499
Development versus Environment (Conservation) ......... 499
pects ermieation 2... 2.4 AWGM
2.2AT se cae’ 500
deseaA.

Case No. 6
A.P. POLLUTION CONTROL BOARD Vv. Pror. M.V. Nayubu,
eS er ee eee a SS rene. ere re ce CET Te 501
Uncertain nature of scientific opinion ...-.............. 503
Precautionary principle and new burden of proof ......... 503
Precautionary principle replaces the assimilative
capacity princine WAT OYURE SY 408 QUOG 20s Bre 1971 504
Special burden of proof in environmental cases .......... 504
Deficiencies in judicial and technical inputs in the
appellate system under the existing laws .............. 505
Duty of the present generation towards posterity:
principle of inter-generational equity: right of
fe teste Aeainst (he presefit....... btw. bus zinc. 506
XXXIV ENVIRONMENTAL LAW

SOME IMPORTANT PRONOUNCEMENTS (contd.)

ns
ts sin
cenen er
e ean n
. re 506
Principle Bi, saassecc
ak ROT OO 506
Principle. 2) .4:4 0:94 % e028"?
: 506
Environmental concerns and human rights ....-++++++:

Case No. 7
A.P. POLLUTION CONTROL Boar (II) v. PRor. M.V. NAYUDU,
(2008) tSGC 62. . i sieee rr centres ets > eres eee 508

Case No. 8
CuHuRCH oF Gop (FULL GosPEL) IN InpIA v. K.K.R.M.C.
WELFARE ASSOCIATION, (2000) 7SCC 282°: -32:23.5.=s<. 511

PACES: oe kik ka span tees sca oe 8a, 2 Set opi i 511

Basic question Mmivolyed .... 2.0- .ss
6 25+ .p..
eee 512

Case No. 9
T.N. GODAVARMAN THIRUMULPAD V. UNION OF INDIA,
a997).2 SCC 2677 BIR- 5907 SC. 1228 — 0a sein 3G itn mms 514
Apoloey is no defence for contémnhor’ 2.525 .
.See + eee “17

APPENDIX 2
NATIONAL ENVIRONMENT POLICY, 2006

Key environmental challenges: causes and impacts .......... 521

Objectives of the National Environment Policy ............ 524
Privtenpies = ice PO a a oie ee 524
Sttatevies and acHiensy 44,-n<dn nd wer tre seman vee 528
ReSulatery Terouas, 1; chaise Silt parva kere alanine acy eee 529
Revisiting the policy and legislative framework ........ 529
Process related.cetorins.>-niies hero ai debi te cele eee 530
Substantive sehothniss andes dost hi's Uw ldihud-niomeel 531
Enhancing and conserving environmental resources ....... 535
Land degradation: on ohu: wens eit sno wearers 536
Desert ecosystemigsiiss:. cicada. asminnistwiv Jost
aien
oes 537
Forests and wildlife
 CONTENTS XXXV

NATIONAL ENVIRONMENT POLICY, 2006 (contd.)

Biodiversity, traditional knowledge, and
natural heritage -
PEGS WWaAtCE FESCUE SEy bo ooo iene: hc ceccl bad L omosecn eco
a, a a ae
SOSe er en

Consérvation of man-made heritage .. 2... 52...

Rmngte Cipatiog os ns fas tots fe td BY SIE QOTe Bou,
Environmental standards, management systems,
Certiicatin, aac fouicaions =... ae te ee th rede os
RUT CIOE ST START 6526 5 bosSores Fink ea SS hw KES 2
Environmental management systems, ecolabelling
SN CINE CliSe as oes foo cb ca pa Hee acne es
Clean technologies and innovation ....................
Environmental awareness, education, and information
Partnerships and stakeholder involvement ..............
Rieansioy Series. (ds GS e005 29 FU ew es
Reser ale GEVEIOPMICNE 2 Oe TR EAN ie
Se A9 ee re nn nnn ne ae ee
OS Ce EMURES a Gin y aes oo ss te 5 oe oes Bes
Review of tnaplemientation: '2. UW v.).05-Jid.
iia ill...

APPENDIX 3

TOWARDS A GREENER TOMORROW

ed cases dues the praiciples 695 eee eee

“Vellore Citizens’ Welfare Forum v. Union of India” ......
“Indian Council for Enviro-Legal Action v.
PP eee eee eee eee ee
OR Md a SEAL NAGS cio ne s o s a aos ce eee ete
“T.N. Godavarman Thirumulpad v. Union of India” ......
“M.C. Mehta v. Union of India”
eo a Ee) ee | ie
ee | i a i a ee
The 1974, 1981 atid £977 ACt 2 ee ee ee ee
DES a ne eT ee ee
lis sles wars se ew pew e cence cere
XXXVI ENVIRONMENTAL LAW

TOWARDS A GREENER TOMORROW (contd.)

The 1991 and 1995 Acts: .asiolwo vel ae
lisOniob i nd. 572
The forgotten remedies: : / 3.2225 22 ee 05 573
“Tennessee Valley Authority v. Hiram G. Hill” .......... 573
To be a good environmentalist >> 255 6. «c+ ~ saree eee 574
Environment-friendly products: ecolabels ................. YE)
Ecomark scheme: India 72-22 ui: anes te eee 575
Recycline programs in India .... =< ...'su . ae 576
Population, control smtviexe Jesmsgenem..2bishanis aloomnous $77
Golden role: .* 5 - s.¢34 wo ngee st SAO ANS ee eee 677

SUUsCCE IBGCK. oa nea ec is oe Se ee 581

 Table of Cases

The highlighted cases can be accessed on SCC Online from

the Case Pilot feature on EBC Explorer.
CASE PILOT

A. Chowgule & Co. Ltd. v. Goa Foundation, (2008) 12 SCC 646:

(66a) 76 AI te7. (3074) oeer-2-91.0,babioeb. sid 2abighsiee 8 fi 361
A.P. Industrial Components Ltd. v. CCE, (2000) 1o SCC 5 .......... 27
A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718:
Rie eeee see tCi«wtié‘(‘(<‘(‘(W#“C#N:CSCOw#C 76, 79, 96, 120, 166, 188, 292, 330, 507
A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (2001) 2
ee en, ee fe eee a eae 77. 230, 287, 201, 292
Abdul Hamid v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., 1989 Cri LJ
tS Ig nc a an eeu Sab te ns = Weta 5 Bite, 5.arc ce EES os, LTR 2 112
Abhilash Textile v. Rajkot Municipal Corpn., AIR 1988 Guj57 ........ 62
Acharya Maharajshri Narendra Prasadji v. State of Gujarat, (1975) 1 SCC
Oe on ea 2 eee ea metare ee 261, 263, 264, 512
Agarwal Textile Industries v. State of Rajasthan, SBC Writ Petition
Mal s47§ OF 19R0, DEdES Ot. 2-3-1091 >ye "oo ei re ta 8 tye yee vt. 290
Ajay Constructions v. Kakateeya Nagar Coop. Housing Society Ltd.,
ON ECO, ay Se inane en A Abate eae enero Siar ae 178
Ajay Dubey v. National Tiger Conservation Authorfty, (2012) 13 SCC 782 . 395
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722:
Se ae BS eC? a IP ae Peart Pe kag i ene iin oar eae 61
Ajeet Mehta v. State of Rajasthan, 1990 Cri LJ 1596 (Raj) ......-.-. I12, 310
Ajendra Singh v. State of U.P., AIR 2006 All227 .........+.-. 351, 361
Alaknanda Hydropower Co. Ltd. v. Anuj Joshi, (2014) 1SCC 769... .. 160
All India Mobile Zoo Owners & Animal Welfare Assn. v. Union of India,
PR ne he OT TP Fate t onto" 396
Alloy Steel Rolling Mills v. W.B. Pollution Control Board, AIR 2006
OU TS trata Se rig eae eee ee FG Ie aea 319, 329
Almitra H. Patel v. Union of India, (2000) 2 SCC 679: AIR 2000
Re gen soe vig 6 es to ks wg 25, 195, 198, 225
Almitra H. Patel v. Union of India, WP (C) No. 888 of 1996, order
OME a a 225
XXXVIII_ ENVIRONMENTAL LAW

.-.-+-> rewmiea 60, 65, 725 79s 975 99

Amarnath Shrine, re, (2013) 3 SCC 247
213: AIR 1987 SC
Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC
ee ie ea eI 360, 363
orf RP ee
) 4 SCC 108... 945467
Amritlal Nathubhai Shah v. Union Govt. of India, (1976
, (1997) 3
Animal and Environment Legal Defence Fund v. Union of India
+4, #97. PRS e aes ees 391
SCC 549: AIR 1997 SC 307f
ention and
Animal Feeds Dairies and Chemicals Ltd. v. Orissa State (Prev
. - +e +e ees 315, 318, 328
Control of Pollution) Board, AIR 1995 Ori84.
Animal Welfare Board of India v. Ombudsman for Local Self Govt.
4 4 bs ene ee 414
Institutions, AIR 2006 Ker 201. 2 ne ee + he
et et rere 446
Argentina v. Uruguay, 4-5-2006 (ICJ) .-- ++ ++
Arvidson v. Reynolds Metals Co., 125 F Supp 486 (1954) ---+-+++:+> 105
Ashok v. Union of India, (1997) 5 SCC 10: AIR 1997 SC 2298 .-. +++: 71
Assn. for Environment Protection v. State of Kerala, (2013) 7 SCC 226:
AER 208s SC R500 4 o)9 Sess oe AES A Se ee eee 95
Attorney General v. PYA Quarries Ltd., (1957) 2 QB 169: (1957) 2 WLR
970: (1957) © AUR Bea) es oo a eee Se 9 ee ee ee 246
Mustealiaye France, 1974 1G) Rep 253 6.0 eS are s Se Soe oe 445

B.L. Wadehra v. Union of India, (1996) 2 SCC 594: AIR 1996

SC 2969...» 26,9 006 21 AROOS) NOMENA) SOT.” OR G2 25, 195, 198
Babulal v. Ghanshamdas Birla, decided on 19-5-1976 (MP) ......... 278
Baidyanath Bandhopadhyay v. Union of India, (1994) 3 SL] 378 (CAT) ... 308
Balkishan v. Unionof India,.(x994).3,SLJ:440 (GAT), +..4.,8 jae Pune 293
Balram Kumawat v. Union of India, (2003) 7 SCC 628: AIR 2003 SC 3268 . 398
Bamford v. Turnley;(a862):3 B8cS.66> 12:2 ER 127: ys shag eis ee ee 102
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: 1984 SCC
(LCS) S86 ae sop oe Be EA e ee eRe AED Be Ea ee Bee 486
Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54: AIR 1991
OR 0) ie a ee ee 425
Banwasi Seva Ashram v. State of U.P., (1986)
4 SCC R 1987
DR ce eee. so Se ee ee S 3 ce eee 73, 88, 93, 366
Banwasi Seva Ashram ». State of U.P., (1987) 3 SCC 304 ...... 70, 352, 366
Banwasi Seva Ashram v. State of U.P., (1992).1 SCC £17 1. . none 70, 352, 366
Banwasi Seva Ashram v,. State of U.P., (1992) 2SCC 202. . . . 70, 98, 352, 366
Belotum:.y. Spain, 1970 1G) Reps... ss. tw a ee Ss ae, 445
Berubari Union (Dre, APR GG SC Ba a aren a) ate 472
Bharat Petroleum Corpn. Ltd. v. Sunil Bansal, (2009) 10 SCC 446:
AIR 2050 SC Supp875." se x oS es ae ee eo ee 320
Bhavani River-Sakthi Sugars Ltd., re, (1998) 2 SCC 6or:
WAR. F088' SC. 2050s = 55. <<a ears oeoa ee ee re ae 295, 299
Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8
SCO 9G PR ORS. SOR Be et ee 200
Bihar State Pollution Control Board v. Hiranand Stone Works, AIR 2005
Pat 62
Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000
O96". oe Seen tk ere eae 31, 70, 85, 104, 139, 142, 164,
| 237, 241, 242, 248, 260, 263, 310
Bombay Burmah Trading Corpn. v. Field Director, Project Tiger &
Conservator of Forests, AIR 2000 Mad 163
 TABLE OF CASES XXXIX

Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action
Group, (2006) 3 SCC 434: AIR 2006 SC 1489 ........... 41, 60, 76
Bombay Environmental Action Group v. Pune Cantonment Board, A.S.
Writ Petition 2733 of 1986, decided on 7-10-1986 (Bom) ........ 73, 84
Bombay Environmental Action Group v. State of Maharashtra, AIR 1991
SOE a crs. es SOs eB LhOOS) Jere) 10 steI2 3 .b3.L sana 281
Brijbala Prasad v. Patna Municipal Corpn., AIR 1959 Pat 273......... 276
Burrabazar Fire Works Dealers Assn. v. Commr. of Police,
PO Te NT Shia a OR Sy CRO D ao 1 es Bl x:985 W424 24252431206

Centre for Environmental Law, World Wide Fund-India v. Union of India,

GeeeeeeestCi(‘ i‘ i‘i‘i‘it ttt tt Kill, 26, 13, 41, 55.,'72,
94, 376, 381, 419, 473
Centre for Environmental Law, WWF-I v. Union of India, (1999) 1 SCC 263 392
Centre for Environmental Law, WWF-India v. Union of India, (2013) 11
Ce We ee ee ag Eg oe eS ee to 355
Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1:
i SORA OO Pee sl me ech acok BTA < viceA-newnsoens% 92,95, 98
Chaitanya Kumar v. State of Karnataka, (1986) 2 SCC 594:
a NE Ds Ok is BEE Oe poe ST 61
Chaitanya Pulvarising Industry v. Karnataka State Pollution Control
RS gp28 ee ee ee ot ee S10, 324. 455 344
Chameli Singh v. State of U.P., (1996) 2 SCC 549: AIR 1996 SC 1051... . . 68
Chandmari Tea Co. v. State of Assam, AIR 2000 Gau 13... 2... ee. 391
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613: AIR 1990 SC 1480 . 227
Chhatisgarh Hydrade Line Industries v. Special Area Development
Fi ae as Sa IegS alte ae area alert he Pa te ak elPatabsPeseg 323
Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4
ee: ees Ee I Cs DOD 8 a nt a ain eee a tate a te 70, 73, 226
Chief Forest Conservator (Wildlife) v. Nisar Khan, (2003) 4 SCC 595: AIR
Bg ae ee emo Sk a Aerie sree ee 384
Church of God (Full Gospel) in India v. K.K.R. Magestic Colony Welfare
Assn., 2000) 7 SCC 282: 2000 SCC (Gri mzso.......... 86, 241, 242,
246, 261, 264, 310
Citizens Council, Jamshedpur v. State of Bihar, AIR 1999 Patr ....... 267
City of Milwaukee v. State, 193 Wis 423: 214 NW 820(1927) ....... 494
Common Cause (Petrol pumps matter) v. Union of India, (1996) 6 SCC
et FO IDI one dake oo eye nnce ive ve ge ee ete is TES 93
Consumer and Civic Action Group v. Union of India, AIR 2002 Mad 298 . 439
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC
a2: 3995-SCC(L&S) 604: AIR 1995 :S©1922,.:¢50 400e/ o R341 OS: FTy 733
96, I1§, 116, 149, 188
Consumer Education & Research Society v. Union of India, (2000) 2 SCC
500: AIR 2006, 00 B0Sa0 HLA ALT lersteie nersiig'! peso wages loys II, 385, 388
Consumer Education and Research Sgsiety v. Union of India, (2005) 10
SCAG £85. x -- Sa es ss BE Ae oe 390
Crawford County Lever and Drainage Distt. No. 1, 182 Wis 404:
pe EE S| ee ee kr ee ee ee ere aS eae ee ee 494
XL ENVIRONMENTAL LAW

. - 61, 63, 96, 174

D.S. Rana v. Ahmedabad Municipal Corpn., AIR 2000 Guj 45
Dahanu Taluka Environment Protection Group v. Bombay Suburban
+ +e ee te es 440
Electricity Supply Co. Ltd., (t991) 2SCC 539
Deepak Kumar v. State of Haryana, (2012) 4 SCC 629: AIR 2012
SC 1386: ei ALA, cisdiisa goat 20,09606, 5 Cie Radel eeenema 155, 162
Deepak Nitrate Ltd. v. State of Gujarat, (2004) 6SCC 402... +--+. - 81, 228
Delhi Bottling Co. (P) Ltd. v. Central Board for Prevention & Control of
Water Pollution, AIR 1986 Delt52 ...- +--+-- - s 288, 294
eee ere
ee ee ee ee ts 321
Delhi Transport Deptt., re, (1998) 9 SCC 250.
Dell v. Chesham Urban District Council, (1921) 3 KB 427 ...--+-+.++--. 276
Deshi Sugar Mills v. Tupsi Kahar, AIR 1926 Pat 506 « - + ++ + ee ees III
Dhannalal v. Thakur Chittarsingh Mehtapsingh, AIR 1959
WEP 2 AC ven ghSola als en gsaea ee ee ate 102, 244, 245
District Cooperative Bank Ltd. v. State of U.P., 2005 ASL 9803) Josue Lat S77
Donoghue v. Stevenson, 1932 AC 562: 1932 AILERRep1(HL).......- 106

Ecuador’. Gélombia, F-472068 (ICI) 80 SAE as ee 445

Emperor v. Ramcharan Ahir, AIR 1926 Oudh 414: (1926) 27 CriLJ 1020 . 248
Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392:
AUR: 2:00 SC BieBah of oh Bie on takes” ot dig” EP aivet ieVEY Rt oe 100, 387, 437, 452

E.B. Taraporewala v. Bayer India Ltd., (1996)6SCC 58: AIR 1997SC 1846. 162
FAK. Hussain v. Union of fpdia, AM. 1990 Kerig2a) Yo siete 4. hao 95:7 05.225
Fairview Farms Inc. v. Reynolds Metals Co., 176 F Supp 178 (1959) .... 05
Fdatepenn 256
Farhd K° Wadia v, Union ot india. (2009) 2 SCG 44% 2: 0-5 teakjeaheu
Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society
of India, (2.004). 4 SCG 420; AIR: 2004 56.2662. os =a sn doidea le nee 80
Bletchcr ¢ealey, (7385) 28 CO D G88... ne ee 275
Fomento Resorts and Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571:
OOO E SR. (ONG) BOT eg ee eae ce Ra ce 95
France v:-Spain (Lake, Lanoux-case), (3957) 241LR tone has os Oe 444, 445, 447
Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608: 1981 SCC (Cri) 212. 71
Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. (NCT of Delhi),
EN OP PI CASNN ne, igs 2 Ebseeee ar hoe. eas ae Seed 264, 269
Friends of Old Man River Society v. Canada (Minister of Transport),
Rn9 92) 1 SCR (Gam sn ee oro eye ae eek ee ee, ee ee 150

G. Sundarrajan v. Union of India, (2013) 6 SCC 620 ....... 33, 41, 42 C8pey7,
99, 152, 156, 230, 435
G. Veerabhadrappa v. M. Nagamma, AIR 1988 Kant 217 .......... 245
Ganda Ranivs MCD, (goto) 16 SCO-945~ n65 « dice Oaks «eee 69, 96
Gaunt v. Fynney3(1872) OOh App 8! 4 6s. 9! 20F Pliage AORoe Tet 237
General Public of Saproon Valley v. State of H.P., AIR 1993 HP 52... ... 98
George Mampilly v. State of Kerala, AIR 1985 Ker24............ 248
Goa Foundation v. Diksha Holdings (P) Ltd., (2001) 2 SCC 97:
OE 437
Goa Foundation v. Konkan Railway Corpn., (1994) 1 Mah LJ 2r . 152, 364, 440
Goa Foundation v. Konkan Railway Corpn., AIR 1992 Bom 471 ...... 440
 TABLE OF CASES (XLI

Goa Foundation v. State of Goa, AIR 2001 Bom 318 .........0.. 359
Goan Real Estate and Construction Ltd. v. Union of India, (2010) 5 SCC 388 437
Goldsmith v. Tunbridge Wells Improvement Commissioners, (1886) 1 Ch
ee ee GOT Sty ieakcre Coe cee ek een. eR Oe OKOL § 276
Gotham Construction Co. v. Amulya Krishna Ghose, AIR 1968
eS ee ey 85, 104, 142
Gould v. Greylock Reservation Commission, (1966) 350 Mass 410 ..... 494
Govind Singh v. Shanti Sarup, (1979) 2 SCC 267: 1979 SCC (Cri) 444... 110
Gramin Sewa Sansthan v. State of M.P., 1986 Supp SCC 578 ......... 70
Greyhound Corpn. v. Blakley, 262 F 2d gor (1958) ........2..24. 106
Gujarat Navodaya Mandal v. State of Gujarat, AIR 1998 Guj 141 ..... 387
Gujarat Pollution Control Board v. Nicosulf Industries & Export (P) Ltd.,
EOS) Ae Soke (Sey © OKAMC IE) VOC Se ed Soe ee te eee 302
Gulf Oil Corpn. v. Gilber, 91 L Ed 1055: 330 US sor (1947) ....... 48, 475
Guruvayur Devaswom Managing Committee v. Supt. of Police, AIR 1998
Seemmaea Yair. Gr tule eee ol eee. Se eee 85, 267
Gyan Prakash v. Ordnance Factory, AIR 2007 MP 118 ........... 223

Hagy v. Allied Chemical and Dye Corpn., (1954) 122 Cal App 2d 361 ... 107
Hetalben Jitendrakumar Vyas v. Sabarmati Police Station, AIR 2006
ID ET a csWek ns_ eh Beads ILA AOOLOM E ola adO, MRIG A TONNeIIN 260, 262
Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496: AIR 2001 SC 3215 = 64, 138
Hollywood Silver Fox Farm Ltd. v. Emmett, (1936) 2 KB 468:
5936 Al ER S2@tC Ay asal ALA, odo) Lav) 2. aliz nove dt 237) 2RAI

Ibbottson v. Peat, (1865) 3 H&&C 644: 159 ER 684 .......2.-2-4. 237

Illinois Central Railroad Co. v. Illinois, 36 L Ed 1o18:
WAG TS Tepe ee td cl co Ae he, waa) a ei eee 93, 494
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3
ee 12, 30, 76, 80, 178, 180,
188, 198, 227, 295, 494, 568
Indian Council for Enviro-Legal Action v. Union of India, (1996) 5
i ag Ue ay ame sb AW ot ara Mae ye 41, 436, 439
Indian Council for Enviro-Legal Action v. Union of India, (zor1) 8 SCC
g6nsd5o11) 4-SCC (Gry) 87 RR eS ee EN 496
Indian Council for Enviro-Legal Action v. Union of India, WP (C) No. 664
of 1993, decided On 21-8-1998 (SG) «00.2 eye ee ee aE EN 165, 439
Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589:
| ee ee 396, 398
Intellectuals Forum v. State of A.P., (2006) 3 SCC 549:
0 a Al, 57, 60, 68, 91, 95, 97
Ishwar Chandra Gupta v. State of U.P., AIR 2011 All 88 ........ 353, 358
Ivory Traders & Manufacturers Assn. v. Union of India, AIR 1997 Del 267 398
Ivour Heyden v. State of A.P., 1984 CriLJ (NOC) 16(AP).....----- 247

J.N. Chaturvedi v. District Magistrate, Allahabad, AIR 2001 Betas eka FO

Jackson & Co. v. Union of India, AIR 2005 Del 334... . +--+ ++-- 64, 195
Jadav Soap Works v. Union of India, AIR 2000 Gau 47 .-- +++- ++: 328
XLII ENVIRONMENTAL LAW

Jajmau Tanner’s Assn., re, (2000) 9 SCC 499: AIR 2000'8G:mg0 «) NOT as 176
Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 BO 3657 AGIEs HOH 577
Joliy George Varghese v. Bank of Cochin, (1980) 2 SCC 360:
AIR 1980 SC 470 |. oc ciesaeavasoon aeospeo ee ane ee on ee 2 472

K. Balakrishnan Nambiar v. State of Karnataka, (zor1) 5 SCC 353:

ATR 20742 SG.1628 yeer 952: Saeed ee os eee 363
K.C.-Malhotra v. Stateiof M-P ATR 1994 MP Ai. ...0:0) «cin deen eae de 70
K.C.P. Sugar & Industries Corpn. Ltd. v. Govt. of A.P., (2005) 11 SCC 544. 308
K. Guruprasad Rao v. State of Karnataka, (2013) 8
SCC. 45853 Kis Giees & s-3 oe abe eee 99, 367, 4525 454, 463
K.K. Ahuja v. V.K. Vohra, (2009) 10 SCC 48: (2010) 2 SCC (Cri) 1x81... 335
K.K. Nandi v. Amitabha Banerjee, 1983 Cri LJ 1479 (Cal) ......... 301
K. Muniasamythevar v. Supt. of Police, AIR 2006 Mad 255 ......... 413
K. Muniswamy Gowda ». State of Karnataka, AIR 1998 Kar281 ...... 316
K. Ramakrishnan v. State of Kerala, AIR 1999 Ker 385 ....... 71, 86, 110
Kachrulal Bhagirath Agrawal v. State of Maharashtra, (2005) 9 SCC 36:
21005 ‘SCC ACO T5908: TEE ie io: As ee Oe) SRS Se oe 573
Kamaljeet Singh Ahluwalia v. State of Bihar, AIR 2006 Jhar44 ...... 363
Kamla Kant Pandey v. Prabhagiya Van Adhikari Obra, AIR 2005 All 136 . 386
Kamla Kant Pandey v. State of U.P., AIR 2006 Aligo2 ............ 386
Keeblew. Hickeringilujazd6) am Bastis5 7401603: ER 1125 cline. isewil led. 236
Kerala State Board for Prevention and Control of Water Pollution v.
Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., AIR 1986 Ker256 ...... 279
Kesvananda Bharati v. State of Kerela, (1973) 4 SCC 225:
IRIE ROT 3, RACE og Sao ne, ce alee Le km, a wo ey eee a 472
Kinkri Devi v. State of H.P., AIR 1988 HP 4... . 61, 71, 96, 98, 153, 178, 225
Kirori Mal Bishambar Dayal v. State, AIR 1958 PRH it .......... 247
Kisan Bhagwan Gawali v. State of Maharashtra, AIR 1990 Bom 343... . . 61
Krishna Gopal v. State of M.P., 1986 Cri LJ] 396 (MP) ....... ¥LL) 3 ¥O;'325
Kumari Varma v. State of Kerala, (2006) 6 SCC 505: AIR 2006 SC 3048 .. 350
Kurnool Municipality v. Civic Assn., 1973 CriLJ 1227(AP) ........ 1 ce)

L.D. Jaikwal v. State of U.P., (1984) 3 SCC 405: 1984 SCC (Cri) 421... . 58
L.K. Kooiwalv.State of Rajasthan, AIR 1988 Raj2.......... 25.085 34
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2017) 7: SCC.338:
MUR tOrt SC67SG kis. cei 18, 146, 158, 159, 369, 371
Laxmi Narain Modi v. Union of India, (2013) ro SCC ce a 418
Laxmi Narain Modi v. Union of India, (2014) 1 SCC 2AL . Saks selene 418
Laxmi Narain Modi v. Union of India, (2014)2SCC 417 .......... 418
Legality of Nuclear Weapons case, IC] Rep 1996. = 445
London and Brighton Rly. Co. v. Truman, (1885) 11 AC 4s (Frey. See 249

M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 ..... 13, 18, 92, 94, 95, 568
M.C. Mehta v. Kamal Nath, (2000) 6 SCC HeA
PEI ONO IOT eo nyd mg wt 40, 62, 64, 76, 82, 92, 99, 101, 126,
142, 174, 179, 187, 188, 295, 2
M.C. Mehta v. Kamal Nath, (2002) 3 SCC 653: AIR 2002 SC Rat
: at Es 188,
290, 299, 496
 TABLE OF CASES XLIII

M.C. Mehta v. State of Orissa, AIR 1992 Ori2z25 ..........2... 71, 98

M.C. Mehta v. Union of India (Matter Regarding Brick Kilns), (1998) 9
SCC 149 eens ATE EA te FLOUR. ial, 1 SISI? wt. ieah ell oo). 329
M.C. Mehta v. Union of India, (1986) 2 SCC 176: 1986 SCC (Cri) 122:
sc re 49, 89, 197, 226, 505
M.C. Mehta v. Union of India, (1986) 2 SCC 325:
eet ( ‘ ee, 49; 50; 7%, 112, 115,
177, 226, 319, 323
M.C. Mehta v. Union of India, (1987) 1 SCC 395: 1987 SCC (L&S) 37:
WI S687 GS TOSS Oe ee a it 13, 28, 30, 49, 50, 51, 65, 108, 109,
I21, 190, 199, 226, 227, 482, 569, 572
M.C. Mehta v. Union of India, (1987) 4 SCC 463:
PAMRe TAOS PIG eT ee gk ee ee 11, 66, 67, 176, 188, 290
M.C. Mehta v. Union of India, (1988) 1 SCC 471:
ae a, 27, 30, 73, 103, 185, 161, 175,107,226
M.C. Mehta v. Union of India, (1992) 1 SCC 358:
wl EO Eo SE 2 RN RS Be a ee ee 40, 755 97, 147, 164
M.C. Mehta v. Union of India, (1996) 8 SCC 462:
ee ROI ROT © So 35 25. eae AD ae SS 103, 161, 174, 261, 268, 323
mt. eects, ein ot India. (5997). 2,SCC arr... oes st ns eo een 296
M.C. Mehta v. Union of India, (1998) 2 SCC 435: AIR 1998 SC 617. . . 146, 165
M.C. Mehta v. Union of India, (1998) 6 SCC 60: AIR 1998 SC 2340 ..... 96
M.C. Mehta v. Union of India, (1998) 6 SCC 63: AIR 1998 SC 2963 .... 320
mae, Menta wv. Union of bedia, 5908) 6. SCC 448 ©. oes en as alee 295
M.C. Mehta v. Union of India, (1999) 7 SCC 522:
RE ee ee ey Loney Ses AEYE Soe Mayo 2 143, 228, 323
nao eecend o. Sener india, (2000) 8 SCO 535... . . 5 naam 16.2 tas 2 188
M.C. Mehta v. Union of India, (2001) 3 SCC 756: AIR 2001 SC 1948 53°75
M.C. Mehta v. Union of India, (2002) 4 SCC 356: AIR 2002 SC 1696 .. II
M.C. Mehta v. Union of India, (2003) 5 SCC 376: AIR 2003 SC 3469 .... 86
M.C. Mehta v. Union of India, (2004) 12 SCC 118:
og eS eer eea ae a 41, 159, 361
Wer. Meles4. Union of india, (2004) 6 SCC 588 foc) egg ee se 67
hM.C. Miekta Union of india, (2005) 10 9CO2T7, st ace sss, + we she 97
M.C. Mehta v. Union of India, (2006) 3 SCC 399: AIR 2006 SC 1325 .. 62,67
ReC oMehta @. Union of tndid, (2006) 3 30429 co es aye se Be, pS 67
en Weta tT a, Fa) na lps ph ny irate ns 67
M.C. Mehta v. Union of India, (2009) 6SCC 142 ...... $8, 77, 79. 162, 167
M.C. Mehta v. Union of India, 1994 Supp (3)SCC 717 ........... 329
M.C. Mehta (Badkhal and Sadana Lakes Matter) v. Union of India,
ROT 5 SOO eS aoe ee oF ee ete Ras SOE Ee Pete Ore 97
M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2
i Te an gl tee (AGE Di pigs ge le i oan ta aiSeaa aea 82
M.C. Mehta (Taj Trapezium Matter) v. Union of India, (1997) 2 SCC 353:
re 115.43, 27, 75s 765 7 7aBRACTs 115;
138, 161, 175, 179, 228, 310, 315, 321, 425
M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464:
PA no tin RA FACE did sealed Aiehe soar] toe 93
M.K. Sharma v. Bharat Electronics Ltd., (1987) 3 SCC 231:
MRE, 6 kw oe 6 es 8 8 8 ee Hee spe 9% 52. 290
XLIV ENVIRONMENTAL LAW

) 4 SCC 240:
M. Nizamuddin v. Chemplast Sanmar Ltd., (2010
437
AIR 2010 SQ@.xz6§2nliA Band QAR Rael TOLER) Beeeeeen eeteaiee a!= eee eee
315 ---++-+++ 287
MP. Rice Mills Assn. v. State of M.P., (1999) 1 MPLJ
ier LEFi RAG 22
M.P. SEB v.-Gollector, AIR: 2003 MP 156) « 255+. > <ieieh soere
) 1
M.S. Appa Rao v. Govt. of T.N., 1995 AIHC 4168: (1995
Race 511
261,
LW 319 (Mad) ... . ...- + Sepa r
3°...- +«350
Maa Dasabhuja Furniture Unit v. State of Orissa, AIR 2006 Ori6
v. Lt. Governor, AIR 1995 Del 195 ...- 85> S42
Madarsa Road Residents Assn.
LJ 499 (Ker) .- +--+ eee setts 112
Madhavi v. Thilakan, 1989 Cri
District Forest Officer, AIR 2002 AP 256 . 169
Madireddy Padma Rambabu v.
Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400:
. + » ax, +992 & testy pie teen cee 472
AIR 1969SC 783...
Mahabir Coke Industry v. Pollution Control Board, AIR 1998 Gauto ... 324
Mahabir Soap and Gudakhu Factory v. Union of India, AIR 1995 Ori 258, snurek tO
Maharashtra Land Development Corpn. v. State of Maharashtra, (2011) 15
SOC L616. ol cen k ee ete ec oa henna a 356
Maheshkumar Virjibhai Trivedi v. State of Gujarat, AIR 2006 Guj 35... 386
Mahmud Ali v. State of Bihar, AIR 1986 Pat 133. - . «2 + ee me es 301
Maily Yamuna v. Central Pollution Control Board, Writ Petition No. 725
OE EGOL aie. Sox wales Reale. etdepiigas Geet as Caen Aeneas a eis 159
Maneck Davar v. State of Maharashtra, WP (OS) No. 2032 of 1983, order
dt. SrIG-TORANE OU com aiien ae deo ca keHoe Sinn < ie 3p os ees oS: ae 25
Maulana Mufti Sayed Mohammad Noorur Rehman Barkati v. State of
Wi i; ALR rope Gaga ats, to gene Sea we Ui eee Gamat Baer eae 70
MCD, 2: |. BaBotthnetlo, (P) Mid. 1975 Ger lh east cies oss phase 335
Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of
Bemeal -(z905):2 SCC tet: ATR 1995 SGx236 7 oe ae a ey ee ee 95
Mohd. 7, Healeh Offidek noOSIKLI 28o.0: . Ss seca es ee ae: Plge oe 246
Mohd. Harron Ansari v. District Collector, (2004) 1 SCC 4gr:
Pee BOA Oi SO tin Le1s Letalee ot deaged ean. a Oe eee a lee ee 324
Mohd. Hazi Rafeeq v. State of Uttaranchal, AIR 2006 Uttr8 ........ 362
Morena Mandal Sahakari Sakhar Karkhana Ltd. v. M.P. Board for
Prevention & Control of Water Pollution, 1993 MPL] 487 ........ 302
Mukesh Textile Mills (P) Ltd. v. H.R. Subramanya Sastry, AIR 1987 Kar 87 . 106
Muklesh Ali v. State of Assam, (2006) 5 SCC 485: 2006 SCC (L&S) 1145 . 362
Municipal Commr. of Suburbs of Calcutta v. Mohd. Ali, (1871) 16 Suth
Waters. 6-1 8o 7a) 7 BemeEa 70s Gres, ee se ke ys oe IIo
Municipal Council, Ratlam v. Vardhichan, (1980) 4 SCC 162:
Coe 74, III, 114, 278, 573
Murali Purushothaman v. Union of India, AIR 1993 Ker297 ...... 319, 328
Murli S. Deora v. Union of India, (2001) 8 SCC 765: AIR 2002 SC 4o .... 71

N.D. Jayal v. Union of India, (2004) 9 SCC 362: AIR 2004 SC 867 . 66,77, 121
N.P.N. Nachiammal Achi v. T.N. Pollution Control Board, (1995) 1 Crimes
194 (Mae) > to ee tet 292
N.R. Nair v. Union of India, (2001) 6 SCC 84: AIR 2001 SC 2337... 415
Nagar Palika Parishad, Mussoorie v. State of U.P., AIR 1998 All 232... . 391
Nagarjuna Paper Mills Ltd. v. Sub Divl. Magistrate, 1987 Cri LJ] 2071 (AP). 113
Nalin Thakor v. State of Gujarat, (2003) 12 SCC 461:
2004 SCC (Cri) Supp 471
 TABLE OF CASES XLV

Naresh Kumar Jain v. Commr., AIR 2006 Jhar 96

Narmada Bachao Andolan v. Union of India, (2000) to SCC 664:
Oees—tC(‘ ‘(“‘a‘(‘él I 76, 159
Narula Dyeing and Printing Works v. Union of India, AIR 1995 Guj 185 . 98, 171
National Audubon Society v. Superior Court of Alpine County, (1983) 658
Piel Poorman Gan sd 476 (Cal SGy 8) 2404 OY, eh DIBQO el 93, 494
National Organisation of Reform of Marijuana Law v. United States,
(Soa eee a Ne ne ee St ee a Or od 35) 150
Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373 . . 357, 360, 364
Nature Lovers Movement v. State of Kerala, AIR 2000 Ker 131 . 93, 96, 126, 364
Navin Chemicals Mfg. and Trading Co. Ltd. v. NOIDA, 1987 AllLJ 13...) 317
News Item “Hindustan Times” A.Q.F.M. Yamuna v. Central Pollution
Control Board, (2000) 9 SCC 440: AIR 2000 SC 3510 (2) ......... a7
News Item Published in Hindustan Times Titled “And Quiet Flows The
DAY YaMS © $ORIFG09) FASC 74G kines EES gree, awe oe 279
Noida Memorial Complex Near Okhla Bird Sanctuary, re, (2011) 1
I oe Oe eR gs 8 ee ue 65, 158, 517
Noise Pollution (5), re, (2005) 5 SCC 733: AIR 2005 SC 3136 ... 236,259, 572
Noise Pollution (7), re v. Union of India, (2005) 8 SCC 796:
es :..°s 0 REet pee ie Se ek ees 256, 265
Noise Pollution, re (Implementation of Laws for restricting use of
Loudspeakers and High Volume producing Sound Systems), WP (C)
Wo 72 wf 1998,senderdt..7=2452005 (A) koa ae-cehs Aah S « done? oes 258

Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545:

ES, 6 no" ota Pe AR LOGE FONE: SIRE Ieee! 10 SIE: 23 SGR) 5
Om Birangana Religious Society v. State of Orrisa, (1996) 100
ON Bae wae bee) SSP geet Dt) FSSORCT) OCT IP PO es Pa 264, 266
Om Prakash Choudhary v. State of Rajasthan, AIR 2005 Raj 18 ...... 357
Orissa Mining Corpn. Ltd. v. Ministry of Environment and Forest, (2013)
A Na, ee coe oe eee ee ea ee 93, 94, 157, 367
Orissa State (Prevention and Control of Pollution) Board v. Orient Paper
en 317
Overseas Tankship U.K. Ltd. v. Morts Dock & Engg. Co. Ltd., 1961 AC
ehh: (geGr)2: WLR a2GPC)) o.)gtcn iar eee e+ Rees 276

P.A. Jacob v. Supt. of Police, AIR 1993 Kert ... +... -+-s 70, 85, 104, 265
PC. Cherian v. state Of Kerala. LOOT WLS 113 . eso. vice epensne gees ee 113
P. Rami Reddy v. State of A.P., (1988) 3 SCC 433: AIR 1988 SC 1626 .... 366
Pakkle v. P. Aiyasami Ganapathi, AIR 1969 Mad35t .........-- 103, 275
Paramjit Kaur v. State of Punjab, (1999) 2 SCC 131: 1999 SCC (Cri) 109. . §07
Pawan Kumar Agarwal v. State of Orissa, AIR 2001 Ori9i...-.-.+.-. 352
People for Ethical Treatment of Animals v. Union of India, WP (C) No. 44
of 2004, decided on 2-5-2005 (SC) .. 2. eee eee et tt es 414
People United for Better Living in Calcutta v. State of W.B., AIR 1993
ED SRS nt EL a + EEE SR eA ee 66, 273, 280, 437, 472
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1
RENEE EO OU, FOO «ee we ce et th ls 472
XLVI ENVIRONMENTAL LAW

India, (1982) 3 SCC 235:

People’s Union for Democratic Rights v. Union of e one
lie ial + aaa ae ee
1982 SCC (L&S):275 2% &: ae np 24
3.54% egiee eee
Phiraya Mal v. Emperor, (1904) 1 Cri L] 513: (Lah)
L Ed 2d 419:
Piper Aircraft Co. v. Reyno Hartzell Propeller Inc., 70 475
scopes RRS Ome Oe. BOCEEA EEE
454 US.235 (2982).
) 9 SCC BAs ccs BS Bee
Pollution Control Board v. Mahabir Coke Industry, (2000
rol of
Pondicherry Papers Ltd. v. Central Board for Prevention & Cont
(Mad) . 294
Water Pollution, Cri MP No. 4662 & 4663, order dt. 21-3-1980
Pradeep Krishen v. Union of India, (1996) 8 SCC 599:
»)4 Hos Bhs sleet ee wee eee 387, 392
AIR 1996 SG 2040;
Pride of Derby and Derbyshire Angling Assn. Ltd. v. British Cleanese Ltd.,
eet 276
(1953) 2 Ch 149: (1953) 1 AIl ER 179 (GA); 2+: “so teehee
Priewe v. Wisconsin State Land and Improvement Co., 93 Wis 534:
67 NW 9x8 (1896) j0/8)4\ 44" nis) b aomne P=pase oie ee eee eee 494

R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91:

BIR 2605: SC S04 aici hai i ls eee a na Sia a ke ale 76
R. v. Fenny Stratford Justices, ex p Watney, Mann (Midlands) Ltd., (1976)
1 WLR rior: (197672 RIVER S89 Oe Le GE 7 ote is tae nee 139
Rabin Mukherjee v. State of W.B., AIR 1985 Cal222 . . . 85, 104, 142, 252, 319
Radhey Shiam v. Gur Prasad Serma, AIR 1978 All 86 .....---.-... 245
Rajendra Kumar v. Union of India, AIR 1998 Raj 165 ... .-
+--+ +++: 397
Ram Baj Singh v. Babulal, AIR 1982 All285 «2... 2. eee ee ee eee 104
Ram Kattan 7 Mauna Lal AiR 1959 Puujzty «ww ww we ee ee 103
Ram Sevak Singh v. State of Bihar, 1979 BLJR 496... .-- +e ee eee 193
Rampal:v: State.of Rajasthan, AIR 1981 Raj 12m... ... ee ee oe 84
Rangnath Mishra v. Union of India, (2003) 7$CC 133... . +--+ ee eee. 99
Read v. J. Lyons & Co., 1974 AC 156: (1946) 2 AILER 471 (HL) ...... 107
Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7SCC 1 . 95
Research Foundation for Science v. Union of India, (1999) 1 SCC 223:
AR ee SC 4 IgG.e +20. Sina Male i, Ce EE ee a 147
Research Foundation for Science v. Union of India, (2005)10
MT se we ks Se ee ee
Research Foundation for Science v. Union of India.
UIE on osoi oeweonvndeesceene Geb? OMA Dhak Weck MON Tas
Research Foundation for Science v. Union of India, (2012) 7 SCC 764:
PERE SOE DSC POSE SE SES Pee ae ee Seg ged 212, 454
Research Foundation for Science v. Union of India, (2012) 7 SCC 769:
po ee Si, 21. 252. wae
Research Foundation for Science (18) v. Union of India, (2005) 13 SCC 186 . 80
Rural Litigation & Entitlement Kendra v. State of U.P., (1985) 3 SCC 614:
ARR wots SG L256) SSNS 5s oor tee teak te oe ahem ea Sea 66, 97
Rural Litigation and Entitlement Kendra v. State of U-P., (1985) 2 SCC 431:
po Ti, BE, 45s 7 35 SOs AO
Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp
SCC 517: PRESS. EGU OG SSO wine oni, dee ee Ae 40, 45, 46, 94, 97, 303
Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (x)
SCC g04: AIR S988 SGGi87.— .. emi ea BRC s ee 153, 182, 183, 360, 515
 TABLE OF CASES ‘XLVII

Rylands v. Fletcher, (1868) LR 3 HL 330: (1861-73) All ER

Pespeeoameeen Glare 2 bertrined Crow. Achaia. Mout, onaas Ok 107, 487, 569

S. Jagannath v.Union of India, (1997) 2 SCC 87:

ee 96, 167, 174, 188, 377, 438
S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149... .. 486
Sachidanand Pandeyv, State ofW.B., (1987) 2 SCC 295:
0 10, 61, 73, 84, 94, 98, 171, 425
Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407:
(205 SCO (eas) £68: AL 2012.96 ASAGrais ot fk (ern) s daswtauibeel oss 92
Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154:
Po 60, 73, 74, 79, 83, 103, 165, 167
Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 222 .. 83, 89
Samatha v. State of A.P., (1997) 8 SCC 191: AIR 1997 SC 3297 ....... 366
Sankar Banerjee v. Durgapur Projects Ltd., AIR 1988 Cal136 ........ 71
Sansar Chand v. State of Rajasthan, (2010) 10 SCC 604:
(jens) 4:50C (Cri) ya.0) sc bGG) eos SLA ~neeh-caiviasbedevan >.¢ 376, 401
Santosh Govind v. State of Maharashtra, (2013) 3 FLT 50 (Bom) ...... 274
Santosh Kumar Gupta v. Ministry of Environment, AIR 1998 MP 43 . . 319, 328
Sarita Agnihotri v. State of M.P., AIR 2004 NOC 210 (MP) ........ 218
Sarup Singh & Co. v. State of Bihar, AIR 2001 Pat36............. 352
Satyavani v. A.P. Pollution Control Board, AIR 1993 AP 257 ....... 94, 98
Savla & Associates v. NCT of Delhi, AIR 2003 Del 73 ......... 257, 261
Sayeed Maqsood Ali v. State of M.P., AIR 2001 MP 220 ..... 241, 250, 269
Shivarao Shantaram Wagle (2) v. Union of India, (1988) 2 SCC 115:
Pe OR Ee no ae LIS DIR A MAE ieee eee AEE 32
Shobana Ramasubramanyam v. Chennai Metropolitan Development
Antiworityy AMR. coor Mead. 22501 ..8 SRT... cee vee eeons BEE WC 59, 262, 310
Sitaram Chhaparia v. State of Bihar, AIR 2002 Pat134...........2.. 98
Sk. Ikram Sheikh Israil v. State of Maharashtra, (2007) 4SCC 217 ..... 257
Simith v. Scott #973) Chigt4: (1092) 3 WLR 783.3 hols jaw cveaps 237
Sneha Mandal Coop. Housing Society Ltd. v. Union of India, AIR 2000
TE Birra eh All eh FSG Lite ok oO ee ey 147, 165, 439
Society for Protection of Silent Valley v. Union of India, OP Nos. 2949
and 2025 of 1979, decided on 2-1-1980 (Ker) .........4-. 44, 3595 374
Sreenivasa Distilleries v. S.R. Thyagarajan, AIR 1986 AP 328 ........ 302
St. Helen’s Smelting Co. v. Tipping, (1865) 11 HL Cas 642 (HL) ...... 103
State v. Public Service Commission, 275 Wis 112: 81 NW 2d 71 (1957) ..- 494
State of Bihar v. Banshi Ram Modi, (1985) 3 SCC 643: AIR 1985 SC 814 . . 515
State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655: 1989 SCC (Cri) 27... 374
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8
SCC 5342 ae 2006 OC 222) ohn jd mime ye} fecal inert T dabribvalese 100
State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68:
BO a Bits 6 6 oo ee ee pe Oe 65, 84, 149
State of Kerala v. P.S. Mathew, (2012) 4 SCC 457: (2012) 2 SCC (Cri) 475:
MER SOEs OE S5O2" fw INSY QIK E ota ee ee! pitdield carneve leo 351
State of M.P. v. Kartar Singh Bagga, AIR 2006 NOC 868 (MP) ....... 363
State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389:
De eee ee ee. 114, 573
XLVIII ENVIRONMENTAL LAW

9) 7 SCC 503:
State of Manipur v. Chandam Manihar Singh, (199
mene egy eee 284, 313
196i SCOALSCS) 1352, os. opss'stgrenes pechey care Seee 263
5 suet ee = ae
State of Rajasthan v. G. Chawla, AIR 1959 SC S44
AIR 2005
State of T.N. v. Kaypee Industrial Chemicals (P) Ltd.,
ee ee 399; 497
Mad 304... et we pet ee
State of Tripura v. Sudhir Ranjan Nath, (1997) 3 SCC 665:
a ne wie a ah teat ee 351
AIR 1997 SCUIOS
Appeal
State Pollution Control Board v. Jagannath Stone Crusher, Civil
0 ass ee 330
No. 4958 of 2010, decided on 6-7-2010 (SC).
+-+. 295
Stella Silks Ltd. v. State of Karnataka, AIR 2001 Kar 219 ....-+-+
-."< 67,8539,
Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC §7§
158, 160, 163, 164, 189, 291, 336, 388
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598: AIR 1991 SC 420 . 70, 149
Suhelkhan Khudyarkhan v. State of Maharashtra, (2009) 5 SCC 586:
(2009) 2 SCG (CHPFEEPENREN IEA IRE. Ie SAR eee? Oe Bees eee 114
Suma Traders v. Karnataka State Pollution Control Board, AIR 1998 Kar8. 328
Suo Motu v. State of Rajasthan, AIR 2005 Raj 82... -. 2 eee ee ee es 67
Suo Motu v. Vatva Industries Assn., AIR 2000 Guj 33. - ee ee ees 147, 189
Supreme Court Monitoring Committee v. Mussoorie Dehradun
Development Authority, (1997) 11 SCC 605 «2 - ee ee eee es 515
Surat Singh v..MCD, (1989) 7 RCR 361 (Del)~) 2 Oe 337
Susetha v. State of T.N., (2006) 6 SCC 543: AIR 2006 SC 2893... . . 273, 280
Sushanta Tagore v. Union of India, (2005) 3 SCC 16: AIR 2005 SC. 1975 - 60, 97

T. Damodar Rao v. Municipal Corpn. of Hyderabad, AIR 1987

2 BSS IOAN ef SR ER ROR 10, 25, 65, 66, 84, 94, 126, 425
T.N. Godavarman Thirumalpad v. Union of India, (2002) to SCC 606:
501S kes ae Ohl oy Gaara aan LIII, 8, 10, 36, 42, 76, 91, 93, 136, 360, 361
T.N. Godavarman Thirumalpad v. Union of India, (2002) 9 SCC 502. 351, 361
T.N. Godavarman Thirumalpad v. Union of India, (2010) 6SCC 710... . 361
T.N. Godavarman Thirumalpad v. Union of India, (zo11) 15 SCC 685 ... 365
T.N. Godavarman Thirumulpadv.Union of India, (1997) 2
IN ica! ol Sas otototit aaah omarias OeoPonof ohoe een II, 356, 358, 361, 569
T.N. Godavarman Thirumulpad v. Union of India, (2001) to SCC 645:
PEERS 2OOC OG E646 - .~5+.- S-ix: FOL OSR EIS 80 Se ee: 147, 351, 358
T.N. Godavarman Thirumulpad v. Union of India, (2002) to SCC 634 .. . . 363
T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 236 . . . . 402
T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 246 .... 74
T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 297 . . 74, 358
T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 367. . . . . 358
T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 96. 2. 355
T.N. Godavarman Thirumulpad v. Union of India, (2012) 13 SCC 438 ... 355
T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277:
PUB, DTS SO APSA +> os Gta ot ohat oh a a? ot ae ate XII 16; T6543, 05,97;
380, 384, 385, 393, 407
T.N. Godavarman Thirumulpad v. Union of India, (2012) 4
SCE. 362" 205-0 d It ORS oft Bi, Se XIII, 13, 15, 16, 18, 94, 98,
3775 381, 419, 457, 463, 464
T.N. Godavarman Thirumulpad v. Union of India, (2013) 11 SCC 466 355
T.N. Godavarman Thirumulpad v. Union of India, (2013) 8 SCC 204... . 167
 TABLE OF CASES, “XLIX

T.N. Godavarman Thirumulpad v. Union of India, (2013) 8 SCC 228... . 355

T.N. Godavarman Thirumulpad (102) v. Ashoka Khot, (2006) 5 SCC 1:
BIR 2096 SCamemnd Soas ALA scidesrcre je ata:2 3s shogoflos A 90, 517
T.N. Godavarman Thirumulpad (50) v. Union of India, (2013) 8SCC 198 . 167
T.N. Godavarman Thirumulpad (77) v. Union of India, (2012) 13 SCC 436 . 363
T.N. Godavarman Thirumulpad (98) v. Union of India, (2006) 5 SCC 28:
CC I oa nevans vudxnetc evens cetc sstesla heey GOK 76, 350, 354
T.N. Godavarman Thirumulpad (99) v. Union of India, (2006) 5
ee eee ee Meee eee Sie ea ee OA Seige SO 27%, 280
Tarun Bharat Sangh v. Union ofIndia, 1992 Supp (2) SCC 448:
Bees a, II, 374, 384, 388
Tarun Bharat Sangh v. Union of India, 1993 Supp (3) SCC 115... 2... 365
ata lea. Ltd. o. Statearserala, SOS4000E GAS «we cee st oye tt et 112
Tehri Band Virodhi Sangarsh Samiti v. State of U.P., 1992 Supp (1) SCC 44. 121
Tennessee Valley Authority v. Hiram G. Hill, 57 L Ed 2d 117:
437 US 353.(7678) ‘R14 « foxes} At t0-09022 1-54) sntl deddine te § 19, 573
Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars
Presection Bese. (2000)'9 SCC. 737 2s oS Ee es oe 42, 80, 82, 296

U.P. Pollution Control Board v. Modi Distillery, (1987) 3 SCC 684:

SOOT CR aes Set a EO OR EEES ge ns + os ea Aes 115, 300
U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745:
A ie OI isd igs mon Saas Siwees eine ew 189, 228, 301, 335
Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674 ......... 482
Union Carbide Corpn. v. Union of India, (1989) 3 SCC 38: AIR 1990 SC 273. 49
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584:
SIs Fg BSS sete ee ee we Se we se EE 88,
188, 227
Union Carbide Corpn. (2) v. Union of India, (1989) 2 SCC 540:
WS ce ee ee eee 27
Union Carbide Corpn. Ltd. v. Union of India, 1994 Supp (3) SCC 328 ... 108
Union of India v. Union Carbide Corpon., 28 USCS 1332 ........... 48
Wasted Kinedom's, Albania) z949 WGJg tse |. Goress Dawebars. 443, 445
ed Sistesice Conae 44, A202 ixoge) ies Kk ee els . 446
United States v. Canada, 35 AJU:.G34 (941), «we ee 446
UT of Lakshadweep v. Seashells Beach Resort, (2012) 6 SCC 136:
i SE eg es eG ou ke ne = ee 436

V. Lakshmipathy v. State of Karnataka, AIR 1992 Kar57..... 70, 103, 148,

169, 268
V.S. Damodaran Nair v. State of Kerala, AIR 1996 Ker8 ..... I71,, 194; 325
Vaamika Island (Green Lagoon Resort) v. Union of India, (2013) 8
RN SO oe a ea ae ae eee ee 437, 459
Ved Kaur Chandel v. State of H.P., AIR 1999 HP 59... ... - 104, 267, 323
Vedire Vankata Reddy v. Union of India, AIR 2005 AP 155 ......-.--: 158
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647:
oo 13, 27, 30, 40, 41, 42, 76, 77, 96, 139, 149, 166,
175, 177, 188, 189, 227, 295, 495, 503, 505, 567
L ENVIRONMENTAL LAW

Vijayanagar Educational Trust v. Karnataka State Pollution Control Board,

AIR 2002 Kar1238 002) oan B8on as, 45 Las RI ee ee 291
Vilas Shankar Donode v. State of Maharashtra, AIR 2008 Bom to ..... 357
Viniyog Parivar Trust v. Union of India, AIR 1998 Bom7r ......... 377
Virender:Gaur v. State of Haryana;.(r995) 2.SC@ 5770 tii somes 138
Vishala Kochikudivella Samarakshana Samithi v. State of Kerala,
AIR 2.006 NOC 44 -(Ret). vis. scons anes cmb >on we pedals sane 273, 280

W.J.F. Realty Corpn. v. State of New York, 672 NYS 2d 1007

(NY App Div. 1998). Ts es ee oe ee ee ee 93
Waschak v. Moffat, 379-Pa 441: 109 A 2d 310(8054) - sn xt, ee oe 107
Wing Commander Utpal Barbara v. State of Assam, AIR 1999 Gau78 .... 62
World Saviors.v. Union of India, (1998).9 SCG 247... . s aaowie
os ce 293

Yakubbhai Sharifbhai Benerjee v. State of W.B., (2013) 3 FLT 64 ...... 324

Yashwant Stone Works v. State of U.P., AIR 1988 Allr2t .......... 350
 Important Statutes

The following important statutes, rules and regulations

can be accessed on SCC Online from the Statute Pilot
STATUTE PILOT feature on EBC Explorer.

Air (Prevention and Control of Pollution) Act, 1981

Biological Diversity Act, 2002
Constitution of India
Environment (Protection) Act, 1986
Forest (Conservation) Act, 1980
Forest Act, 1927
National Green Tribunal Act, 2010
Prevention of Cruelty to Animals Act, 1960
Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006
Water (Prevention and Control of Pollution) Act, 1974
Wild Life (Protection) Act, 1972
 Rules and Regulations

Bio-Medical Waste (Management and Handling) Rules, 1998

Chemical Accidents (Emergency Planning, Preparedness and
Response) Rules, 1996
E-waste (Management and Handling) Rules, zo11
Environment (Protection) Rules, 1986
Hazardous Wastes (Management, Handling and Transboundary
Movement) Rules, 2008
Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989
Noise Pollution (Regulation and Control) Rules, 2000
Plastic Waste (Management and Handling) Rules, 2or1z
 Introduction

By destroying nature, environment, man is committing

matricide, having in a way killed Mother Earth.
Technological excellence, growth of industries,
economical gains have led to depletion of natural
resources irreversibly. Indifference to the grave
consequences, lack of concern and foresight have
contributed in large measures to the alarming position.’
—Ariit Pasayat ]

It is axiomatic that “mankind is the part of nature and life depends on

the uninterrupted functioning of natural system which ensures the sup-
ply of energy and nutrients” which is essential for every life support sys-
tem. Man must live in harmony with nature which nourishes him and
provides all basics of human life. Thus, basic precepts also envisage that
protection of nature means preservation of humanity. Mankind is a part
of nature—not essential for nature.
For the greatest environmentalists, humans are of lesser importance than the
abundant and diverse flora and fauna of the planet. Humans are defined as
a recent addition to the livestock and are considered to have been a wholly
disruptive influence on a world which was a paradise before their arrival.*
The problem of environmental pollution and degrading has assumed
threatening dimensions particularly during the last three decades.
Other two major contributors to environmental pollution and degra-
dation are poverty and population explosion, which have also emerged
as formidable problem of the humanity today. It is because of these inter-
linked problems of pollution, population and poverty that international
organisations like UNO, etc., have expressed their concern about their
plight and have come out with various international conventions, dec-
larations and protocols. The Stockholm Declaration, 1972; the Nairobi
1. T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606, 613: AIR
2003 SC 724.
2. Rosalind Malcolm, A Guidebook to Environmental Law, 1.
LIV ENVIRONMENTAL LAW

Declaration, 1982; the World Charter for Nature, 1980; the Earth Summit
(Rio de Janeiro Conference), 1992; the Johannesburg Declaration on
Sustainable Development, 2002 are some of the representative samples
of the concern of the UNO about awful condition of the natural environ-
ment. “Our Common Future” has very rightly depicted the sorry state
of environment and has also put forward various practical suggestions
to ameliorate the degrading environment. It has aptly been observed that
the degradation of natural resources due to excessive consumption and
misuse of natural resources, as well as failure to establish an appropriate
economic order amongst people and States, lead to the breakdown of
the economic, social and political framework of civilization. In plan-
ning and implementation of social and economic development activities,
due account shall be taken of the fact that the conservation of nature is
an integral part of these activities. Problems like “global warming” and
“acid rain” paint a very grim picture of the future of mankind. With
the increase in number of heads every second, the problem of housing,
water, electricity, disposal of municipal solid wastes have given birth to
worrisome challenges. Similarly, the unprecedented progress in science
and technology has posed the gravest threat of disposal of atomic wastes
and hazardous chemical wastes. Such problems have created an anoma-
lous condition for the existence of mankind world over. Moreover, pollu-
tion has assumed transboundary character. Therefore, the international
conventions/declarations, treaties and regional declarations have urged
the State Governments to take necessary administrative, legal and other
measures to contain and control the gigantic problem of environmental
pollution resulting into degradation of the natural environment.
India, who was a participatory of these international declarations/
conventions, has also taken various appreciable and significant legisla-
tive and executive measures to curb and subjugate this problem. The
myriad legislative measures adopted cover a wide range of environmental
problems like water pollution, coastal zone management, nuclear wastes,
poverty, development, air and noise pollution, hazardous substances and
chemicals, usages of polythene, batteries, CFC substances, etc. Recently
passed the Biological Diversity Act, 2002 and the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forests Rights) Act,
2006 need special mention as they are a significant step towards the
sustainability of the natural environment. These two are also significant
because of the fact that they aim to protect and preserve the rarest of rare
flora and fauna which are disappearing/extinguishing rapidly everyday.
The Act of 2006 not only protects traditional knowledge and means to
protect the environment, but rectifies the historical mistake where real
stakeholders (aboriginals or forest dwellers) were never taken into con-
sideration by the government.
 INTRODUCTION LV

Recently declared National Environment Policy, 2006 and National

Population Policy, 2000 by the Indian Government are also laudable
actions/steps towards revamping of the old policies and infuse a common
approach to the various sectoral and cross-sectoral approaches to envi-
ronmental management. It also shows that challenges of our development
have evolved and our understating of the centrality of environmental con-
cerns in development has sharpened. “The dynamic requires an evolving
and flexible policy framework with a built in system for monitoring and
review, and where necessary, revision. Sustainable development concerns
in the sense of enhancement of human well-being, broadly conceived, are
a recurring theme in India’s development philosophy.”* Thus, the policy
statement has outlined a significant number of new and continuing initi-
atives for enhancing environmental conservation. It envisages “account-
ability” of the public agencies and authorities. It also seeks to stimulate
partnership of different stakeholders, i.e. public agencies, local commu-
nities, academic and scientific institutions, the investment community,
and international development partners, in harnessing their respective
resources and strength for environmental management. Therefore, it has
provided various innovative techniques and measures to meet major chal-
lenges like “greenhouse effect”, ozone depletion and biodiversity loss, in
addition to regional and local threats to the environment.
In light of the above, the book in your hand is an attempt to arouse
awareness about the environmental problems and the laws concerned
to protect and recuperate the degraded natural and man-made environ-
ment. The present work has been prepared keeping in view the need,
status, viability and practicalities of the subject. Therefore, the present
volume has been divided into 14 chapters incorporating recently passed
relevant legislations on the subject and significant pronouncements of the
judiciary.
It must be remembered as a citizen of India and as a cosmopolitan
that we owe a special responsibility to safeguard and to wisely manage
flora and fauna, the wildlife and its habitat which are gravely imperilled
by combination of adverse factors like population, poverty and consum-
erism, and unbridled use of the non-renewable natural resources. Thus,
to defend and improve the human environment for present and future
generations has become an imperative goal for mankind—a goal to be
pursued together with and in harmony with the established and funda-
mental goals of peace and of worldwide economic and social develop-
ment.’ Now it is hoped that the pages to follow would help all to become
a responsible citizen to safeguard and preserve the representative sample
of nature to pass it on to the progeny unblemished and secure.

3. Indian National Environmental Policy, 2006 (emphasis supplied).

4. The Stockholm Declaration, 1972, para 6.
 Mother Earth

Earth, upon which this moving, breathing life exists;

May she bestow on us the finest of her harvests!
Earth, the all-sustaining, treasure-bearing, resting-place;
Golden-breasted Earth, home of all life,
Who bears the sacred fire.
Pleasant be thy hills, O Earth,
Thy snow-clad mountains and thy forests.
On this Earth do I stand,
Unvanquished, unslain, unhurt.
Set me, O Earth, amidst the nourishing strength
That emanates from thy body. The Earth is my mother, her child am ];
Infinite space is my father,
May he fill us with plenty.
Peaceful, sweet-smelling, gracious Earth;
Whatever I dig from thee, O Earth,
May that have quick growth again,
May we not injure your vitals or your heart.
Full of sweetness are the plants,
And full of sweetness these my words.
And with things that are full of sweetness,
I prosper in a thousand ways.

Atharvaveda-Book XI-1-23
 CHAPTER 1
Ancient Indian Environmental Ethics!

The present day increasing tirade against environmental pollution and

eco-imbalances proved a growing consciousness about the ecology’, eco-
nomics, energy, employment and equity (Five Es). Most important of
these five Es is ecology because it deals with basic life-supporting sys-
tems—land, water, flora, fauna and the atmosphere. Moreover, “ecology
is one of the disciplines consisting of the core of environmental science”.
Thus, environmental management not only includes ecology but also
includes energy, land-use planning, forestry, population control, sanita-
tion, industrial processes, agriculture, etc. It is abundantly a study which
includes ecology, physiology, genetics, chemistry, geology, physics, engi-
neering, geography, economics, political science, sociology, psychology,
etc. To conclude, environmental science is the application of this knowl-
edge to manage the environment.
Air, water, land are the representative samples of natural environ-
ment, and geophysical, atmospheric and hydrological systems determine
the character of biosphere including biota and mankind of a region. If
we try to disturb nature or natural environment in excess, it disturbs
and damages us irreparably. Therefore, it is necessary to know how to
behave with various components of natural environment. The principles
of ethics? which guide an individual as to how to behave with the envi-
ronment is known as environmental ethics. It mainly consists of rules of

1. Major part of it also appeared in R.B. Singh & Mishra, Environmental Law in India
(1996) New Delhi.
2. The term ecology is derived from Greek word Oikos meaning “a place to live”.
Popularly it is known as the study of relationship of an organism or group of organ-
isms to their environment. According to Odum, it means “the study of the structure
and function of nature”. E.P. Odum, Fundamentals of Ecology (1971) Philadelphia,
W.B. Saunders.
3. Ethics is a system of moral principles or rules of conduct. Ethics means the science
that “deals with morals, moral correctness”, Oxford Advanced Learner's Dictionary
(1989) 430.
2 ENVIRONMENTAL LAW [CHAP.

moral correctness or moral behaviour towards the components of envi-

ronment, viz. land, water, air, flora and fauna. In the present chapter,
an attempt has been made to discover and reiterate the environmental
ethical rules prevailing in the olden society and to examine how far they
are being abided by and recognised by the Indian Constitution.

1. ENVIRONMENTAL ETHICS IN OLDEN TIMES

Since Vedic time the main motto of social life was “to live in harmony
with nature”. Sages, saints and great teachers of India lived in forests,
meditated and expressed themselves in the form of Vedas, Upanishads,
Smritis and dharmas. This literature of olden times preached in one form
or the other a worshipful attitude towards plants, trees, Mother Earth,
sky (aakash), air (vayu), water (jal), and animals and to keep a benevo-
lent attitude towards them. It was regarded a sacred duty of every person
to protect them. The Hindu religion enshrined a respect for nature, envi-
ronmental harmony and conservation. It instructed man to show rev-
erence for the presence of divinity in nature. Therefore, trees, animals
(cow), hills, mountains, rivers are worshipped as symbols of reverence to
these representative samples of nature.
A perusal of Hindu religious scriptures called the Vedas, Upanishads,
Smritis, Puranas, Ramayana, Mahabharata, Gita, mythological litera-
ture including stories, social and moral codes, and political rules revea!
that the following were the general guiding principles to be observed by
all in their daily life:
Respect nature.
Life in living is dependent on various components of nature.
Keep harmony with nature.
Protect natural environment.
Utilise natural resources only to satisfy the needs of the people.
ee
ae
OvePresence of the divinity of nature in all living and non-living
objects.
7. Destruction of nature means destruction of mankind.
8. All must have compassion for animate objects; for example, trees,
animals, birds, aquatic life, etc.
9. Air, water, land, sky, trees, animals are the creation of God and
He dwells in all of them. Therefore, to worship them is to worship
Him—the creator of the universe.
to. Man, being one of the creations of God, has no special privilege
or authority over other creatures, on the other hand he has more
obligations and duties to protect and improve them.
11. Ahimsa Parmo Dharmah (non-violence) is the dharma of the high-
est order, one should be non-violent towards animals, trees, and
 r| ANCIENT INDIAN ENVIRONMENTAL ETHICS 3

other microorganisms alike. Hinsa (violence) was considered as

a sin.
12. Drought, fury of floods and storms, heavy rains, cloudbursts, light-
ning, earthquakes, volcanic eruptions, heavy tides are the violent
forms of anger manifested by the Gods and Goddesses.
13. Purity of thought and expression, and cleanliness of the environ-
ment around us should be observed.
14. All lives, human and non-human including trees, are of equal value
and all have the same right to existence. It shows that the principle
of sanctity of life is clearly ingrained in the Hindu religion.
Vedas are crowning glories of Ancient Indian literature. The Vedic views
revolve around the concept of nature and life. The visions of the beauty
of life and nature in the Vedas are extremely rich in poetic value. Perhaps
nowhere else in the world has the glory of dawn and sunrise and the
silence and sweetness of nature received such rich and, at the same time,
such pure expression. The oldest and simplest form of nature—worship
finds expression in Vedic texts and more particularly in Rigveda. The
origin of environmental science can be seen long back in the Vedic and
ancient Sanskrit literature. Vedic view on environment is well-defined in
one verse of the Atharvaveda where three coverings of our surroundings
are referred as Chandamsi:
Wise utilise three elements variously which are varied, visible and full of
qualities. These are water, air and plants or herbs. They exist in the world
from the very beginning. They are called as Chandamsi meaning ‘coverings
available everywhere”.
It proves the knowledge of Vedic seers about the basic elements of
environment.
According to one indigenous theory established in the Upanishads, the
universe consists of five basic elements, viz. 1) earth or land, 2) water,
3) light or luster, 4) air, and 5) ether. The nature has maintained a status
of balance between and among these constituents or elements and living
creatures. A disturbance in percentage of any constituent of the environ-
ment beyond certain limits disturbs the natural balance, and any change
in the natural balance causes lots of problems to the living creatures
in the universe. Different constituents of the environment exist with set
relationships with one another. The relation of human beings with the
environment is very natural as he cannot live without it. Rigvedic hymns
are devoted to natural forces and they have been identified with deities.
In these hymns, we find prayers for certain natural elements such as air,
water, earth, sun, rain, dawn, etc. The glorious brightness of the sun, the
blaze of the sacrificial fire, the sweep of the rain-storm across the skies,
4, aiftr seoraife want fa aft goed aid fastens |
mat are ara yar snffen 11 Atharvaveda, 18.1.1
4 ENVIRONMENTAL LAW [CHAP.

the recurrence of the dawn, the steady currents of the winds, the violence
of the tropical storm and other such natural energies, fundamental activ-
ities or aspects are glorified and personified as divinities (Devata).
In Rigveda, one Aranyani Sukta is addressed to the deity of forest’ and
Oshadhi Sukta cautioned that they should not be destroyed®. Rigveda
acknowledged air (vay) as one of deities and mentioned that “Let wind
blow in the form of medicine and bring me welfare and happiness”’ and
that it has medicinal value.* Animals and birds have also been accepted
as part of nature and environment. It has also been warned that animals
should be safe, protected and healthy.? The Atharvaveda talks about the
relation of plants with earth, “The earth is keeper of creation, container
of forests, trees and herbs.”!° And that plants are life forms.'' It is also
maintained that “One tree is equal to ten sons”'’.
There are mentions of “panchvati” in ancient Indian text including
famous epic Ramayana; a “panch” means “five” and “vati” means
“grove”, meaning thereby a grove consisting of five trees. Giving impor-
tance to five kinds of trees, denotes a forest in which there is abundance
of those five kinds of trees. In Sanskrit literature, the most important
of the five trees is “vata” (banyan) tree. This tree represents the floor
of sub-generating trees by turning its branches into trunks and when
they reach the soil, it starts taking roots and becomes a tree. It has great
medicinal value.'? Second tree is “peepal” (ficus religiosa) which is also
mentioned in Sanskrit literature. It also has medicinal value as mentioned
in Atharvaveda. Other three mentioned in olden literature are “ashoka”
(polyalthia longifolia), “bael” (aegle marmelos) and “harad” (myrobalan
terminalia chebula). But nowadays they are named as Amla, Neem,
Tulsi. But one thing is common that these all have great medicinal value
and keep people hale and hearty.
Many verses in the Rigveda and Atharvaveda have been devoted to
the praise of Lord Surya (sun), Vayu Devta (Lord of the winds), Agni
Devta (God of fire), Varuna Devta (God of water), Prithvi Mata (Mother
Earth), Vanya Devi (Goddess of forests), etc. Therefore, cutting of trees,
polluting air, water, land were regarded as sins as elements of nature
were to be respected and regarded as Gods and Goddesses. Protection of

5. Rigveda, 10.146
6. sat 4: safeaty |Ibid, 8.1.13.
7. AG FH Ag Ae wy HAY at sei Ibid, 10.186.1.
8. a1 a ae Yee |Ibid, 1.37.2.
9. Yajurveda, 19.20, 3.37; Atharvaveda, 11.2.2.
10. aeaicatt yarea et areadat aR EAT | Atharvaveda, 12.1.57.
11. 34 soa dret Ibid, 1.32. “
12. cagart gH: | Padmapurana, 1.44.455.
13. Its milk helps toning our complexion, help cure phlegm, bile, toothache
and gynae-
cological disorders.
T| ANCIENT INDIAN ENVIRONMENTAL ETHICS §

their purity and wholesomeness was considered to be the duty of every-

one. Hindu society did not consider it proper even to throw dust on a
public path (highway). Rigveda'*, Manusmriti'’ and Charaka Samhita'®
have emphasised on the purity of water and healing and medicinal value
of water. Because of these injunctions a system of Maryada (code of con-
duct) developed in Indian society to keep water clean and wholesome.
Similarly, trees and plants have been regarded as indispensable in the
life of human beings. They have been considered as revered, bestow-
ers of good and protectors from evil with a concept of God living in
them. Trees and plants are considered as the abode of various Gods and
Goddesses. This sense of worship has also a background of utility and
spiritfulness. The Rigveda devoted an entire hymn to the praise of heal-
ing properties of trees.'’ Some of the names of trees associated with Gods
and Goddesses are given in Table tr:

TABLE 1 Trees associated with Gods and Goddesses

Se
ae Otten rtanie.
PGE oo pt to Sen sity
nates ending
os pater OM
aayase< rca
SAmedl 30 hr.yhshane
ee
ie ie Seen. Aes elon nysarh eb pes wore snvioaels woe alt...

Lotus Laxmi (Goddess ofwealth)

MangoFt cyto
em Weel «od emcee Seabee et Laxmi,nae
ae Govardhan >rth,pale axAR ames :ae
= Raa
aa eicic Fee aha acinar eaten phisitaiiis em uae
eg SA eee . A ie ae a eee eR Es, iy sate:
cn aaah ath ash dm thaudetls--cynmlaya grace Rennes dis at zeda tan daca

Thus, trees are worshipped as Varikchay Devta (tree deity) with prayers,
offerings of water, flowers, sweets and encircled by sacred threads.
Planting of trees is also regarded as a sacred religious duty and work
of great virtue. Matsya Puran has regarded plantation of one tree equal
to ro sons. According to Vaha Purana, “one who plants one pipal, one
neem, one ber, ten flowering plants or creepers, two pomegranates, two
oranges and five mango trees will not go to hell”.'* Therefore, cutting of
trees and destruction of flora was considered a sinful act. Manusmriti,
known as the first systematic treatise on Hindu Law’’, has prescribed

14. Rigveda, VII, 42.2.

15. Manusmriti, IV, 56.
16. Charaka Samhita, Sutrasthana, XX VII, 213, 215, Charaka Samhita, Vimanusthana,
II], 6(2).
17. Rigveda, X, 97.
18. Varaha Purana, 172.39.
19. Manusmriti, XI, 64, 65; IV, 56.
 [CHAP.
6 ENVIRONMENTAL LAW

Samhita
various punishments for destroying trees and plants. Charaka
act for
has considered the destruction of forests as the most dangerous
humanity and its welfare.
The destruction of forests is most dangerous for the nation and for human
of
beings. Vanaspati (vegetation) has direct relationship with the well being
the society. Due to the pollution of natural environment and the destruction
of vanaspati, many diseases crop up to ruin the nation. Only then Vanaspati
with medicinal qualities may enhance the nature and cure diseases of human
beings.”°
Charaka also mentioned specifically air pollution as a cause of many
diseases:
The polluted air is mixed with bad elements. The air which is against the
virtues of season, full of moisture, speedy, hard, icy, cool, hot, dry, harmful,
terribly roaring, colliding from two or three sides, bad smelling, oily, full of
dirt, smoke, sand and steam, creates diseases in the body and is polluted.
Charaka Samhita, 3.6(r)
Similarly, the Charaka Samhita also prohibits the use of unwholesome
water.
The above discussions show that Hindu worship of trees and plants
has been partly based on utility and partly as a religious duty and mythol-
ogy. Gradually, trees and plants became religious objects and objects of
worship.

1.1 Animals, birds and Hindu way of life

The above discussion makes it amply clear that the Hindu way of life
has respect and consideration for the natural world including animals
and birds. The most important aspect of Hindu theology is the associa-
tion accorded to different species with reincarnation and deities, and it is
believed that the Supreme Being actually gets himself incarnated in the
form of various species.7!
Further, Hindus were advised to treat all other species just like their
own children.
One should look upon deer, camels, monkeys, donkeys, rats, reptiles, birds,
and flies as though they were their own children, what is that which distin-
guishes these from those (children).??
Several Hindu Gods and Goddesses have animals and birds as their
mounts. Some of them, associated with Hindu Gods and Goddesses, are
given in Table 2:

20. Charaka Samhita, Vimanusthana, II, rr.

21. Atharvaveda, XII, 1.15.
22.Srimad Bhagavatam, VII, 14.9.
1] ANCIENT INDIAN ENVIRONMENTAL ETHICS v4

TABLE 2 Animals associated with Gods and Goddesses

a

Name of animal/bird Name of God/Goddesses

EO eee ese
ee ee i
a eat cee cee ao kilns:
) eee pals cles SE OCA TE As ee ear Lh O) 7 0418 6 Ca RPE oe oe Pee
“ ee ett, Mee ee ee te staee eee ee

dhogiNo Ahn
haggle <0ve (oH) cstfid A biCthabtie
a EEN ot ee Databefelo-aS26 :\ir= vol ee
note= 6
er rey Siu aes area REID es REE WOON EN LOGS NRET AE
(eeeanpeaaaiaal nae pa eee ee ie ie oe Pie! lirace
ae sie aa ge Poe ee ee ee gx Ts ieee aleesiat..de epee.
Sa (Rsceucssouts cies enrre Pies 20) eto Boe EL Blit? St
bale ohict eit WS eee enya Sa Spied EST UE
Ea ie ITO =m ee ee ee ee
sae eS SR ae Dae We an EE IE ATER, PE GTS |
igstiet ir Sec
Aerated
o har Pent STO ee. Itt. oe eee
ee ee beats; pita FR Rae eI Bt- oa ae aes.

Apart from economic importance of animals and birds in Vedic India,

they fulfilled significant ritualistic and symbolic roles in society; for
example, cow’s milk and other dairy products are used in religious cer-
emonies, fasting days and offered as oblations to Gods. Looking at the
uses and medicinal utility of cow’s milk, urine and dung, cow is sanc-
tified and cow slaughter is treated as the highest form of sin.*? These
rituals and sanctity are still maintained and observed today in the daily
life of Hindus.
Killing of animals is against basic tenet of Hindu way of life— Ahimsa
(non-violence); therefore, having deep faith in the doctrine of non-violence,
it was felt that God’s grace can be had by not killing his creatures and
killing of mute animals and birds is a sin.”
By the end of Vedic and Upanishadic periods, Buddhism and Jainism
came into existence. Non-violence, truth, respect and love for other
living organisms including trees became the basic tenets of these reli-
gions. They also contain the precepts for environmental protection.
The Buddhist emperor, Ashoka the Great (273-36 BC), promoted the

23. Rigveda, X, 87.16; Yajurveda, XIII, 47, 49 (No person should kill animals helpful to
all and by serving them one should obtain heaven) 47; Manusmriti, V, 45, “He who
injures innocuous beings with a desire to give himself pleasure, never finds happiness,
neither living or dead.”
24. Yajnavalkyasmiriti, Acaradhyayah, V, 180; Vishnu Purana, III B, 15, Manusmriti,
V, 45:
 [CHAP.
8 ENVIRONMENTAL LAW

ed various pun-
planting and preservation of flora and fauna. He prescrib
rats, birds,
ishments for the killing of animals including ants, squirrels,
and cutting of trees.

2. ENVIRONMENTAL ETHICS AND

THE CONSTITUTION OF INDIA
India has inherited a culture of tolerance, non-violence, equity and com-
passion for animate objects. In the olden times, they were a part of daily
life and synthesised with the religion. Religious teachings, social and
political norms, and economic policies treated man as a part of nature,
not as a moulder or superior to it. Air, water, land, animals, plants and
human beings are the creation of one superior power—God. Therefore,
the fundamental ethics of behaviour with each other was to live in har-
mony with each other, because it was well realised that each one of them
is dependent on one another and destruction or damage to the other is
the destruction of self and is complementary to each other. Therefore,
interdependence, cooperative living and close association with other
components of environment was the real basis of human life. Wisdom
of Vedas, religious principles of Hindus, and moral doctrines taught the
lesson of coexistence between man and his environment which later on
became a part of the daily life of the people.
The abovementioned philosophy of peaceful coexistence with nature
is mentioned, in one way or another, in the Indian Constitution.
Two articles relating to environment were incorporated in the Indian
Constitution— Articles 48-A*> and 51-A(g)?°. Article 48-A is a constitu-
tional pointer to the State to protect and improve the environment, and
Article 51-A(g) confers a fundamental duty on the citizens of India to pro-
tect and improve the environment and have compassion for living crea-
tures. This clearly shows that the Indian Parliament fell in line with ola
traditional values. The language used in the articles clearly indicated the
principle of equity, coexistence, reverence for nature and non-violence has
been given legal recognition. The use of the terms “protect and improve”
implies the improvement of the natural environment and improvement
of the quality of life. Further, protection of the environment implicitly
directs us not to cut trees and to keep the water of rivers, lakes, etc. clean
and wholesome. This is reminiscent of centuries old “Chipko movement”
of village Kherjarilli of Rajasthan where Amrita Bai, her four family
members and other 359 persons sacrificed their lives to save trees of the
25. Art. 48-A: “The State shall endeavour to protect and improve the environment and
to safeguard the forest and wildlife of the country.”
26. Art. 51-A: “It shall be the duty of every citizen of India, (g)... to protect and improve
the natural environment including forests, lakes, rivers and wildlife and to have com-
passion for living creatures.” See, T.N. Godavarman Thirumalpad v. Union of India
(2002) 10 SCC 606: AIR 2003 SC 724.
T| ANCIENT INDIAN ENVIRONMENTAL ETHICS 9

village (popularly known as “Green Khejris”).2” Thus, we have a culture

where trees are regarded more precious and revered than our lives. The
government has also declared the villages of Bishnois in Punjab, Haryana
and Rajasthan States as “reserved areas”, and cutting of trees and killing
of animals has been declared an offence in those village territories. If one
happens to visit these villages, one can witness deer and other innocuous
animals roaming in the village freely and fearlessly.
The term “to have compassion for living creatures” used in
Article 51-A(g) impliedly recognises the principle that all creatures are
made equal and that animal killing should be prohibited as taught by the
principle of non-violence, or as the moral code of conduct says “killing
of animals and birds is a sin of highest order”. Abiding by this philos-
ophy of olden time, Parliament has also passed two statutes, viz. the
Wildlife (Protection) Act, 1972 and the Prevention of Cruelty to Animals
Act, 1960. It is also in consonance with another ethical principle that an
unarmed enemy and mute birds and animals should not be harmed or
attacked. This reminds us of an old story of Prince Siddhartha who saved
a swan which was shot at with an arrow by his brother. The same Prince
Siddhartha became Lord Buddha—a great preacher of non-violence
(Ahimsa) who was in harmonious relationship with nature. The object
behind this theory of “to have compassion for living creatures”, scientif-
ically speaking, is that animals and birds are at the second trophic level
of the food-chain or food webs and help in energy flow. The utility of
animals and their products needs no special mention here. It should also
not be forgotten that wildlife is the guardian and protector of our forests.
Decay of wildlife implies decay of forests. Thus, forests and wildlife are
interdependent and complementary to each other.
Indian social and moral ethics relating to environment protection and
conservation have been accepted by Indian courts time and again. Some
of the judicial pronouncements upholding old Indian traditions concern-
ing environment are quoted below:
Water and rivers have dominated the destiny and fortune of man. Plentiful
rivers have brought prosperity to those who lived on their banks. If Bhagirath
brought salvation, Ganga sustains life... ages have rolled up by it and it has
remained eternal.**
In order to arouse amongst the people the consciousness of cleanliness
of environment the Government of India and the governments of the States
and Union Territories may consider the desirability of organising ‘keep the
city clean week’, ‘keep the town clean week’ and ‘keep the villages clean
week’... at least once a year. During that week the entire city, town and vil-
lage should be kept as far as possible clean, tidy and free from pollution of
land, water and air.’’
27. The episode took place in 1731 AD.
28. F.K. Hussain v. Union of India, AIR 1990 Ker 321.
29. M.C. Mehta v. Union ofIndia, (1988) 1 SCC 471: 1988 SCC (Cri) 141.
 ENVIRONMENTAL LAW [CHAP.
IO

Environmental law is based on the realisation of mankind of the dire phys-

ical necessity to preserve these invaluable and none too easily replenishable
gifts of Mother Nature to man and his progeny from the reckless wastage
and rapacious appropriation that common law permits.°*° |
You must teach your children that the ground beneath their feet is the
ashes of our grandfathers so that they will respect the land. Tell your children
that the earth is rich with the lives of our kin. Teach your children what we
have taught our children, that the earth is our mother. Whatever befalls the
earth befalls the sons of the earth. If men spit upon the ground, they spit
upon themselves .... He is the god of man and His compassion is equal for
red and white. This earth is precious to Him and to harm the earth is to heap
contempt on its Creator.... Contaminate your bed and you will one night
suffocate in your own waste.*!
Since time immemorial, natural objects like rivers enjoyed a high posi-
tion in the life of the society. They were considered as goddesses having not
only the purifying capacity but also self-purifying ability .... The dharma of
environment was to sustain and ensure progress and welfare of all. The inner
urge of the individuals to follow the set norms of the society, motivated them
to allow the natural objects to remain in the natural state.*
Thus, various constitutional provisions and statutes relating to environ-
ment have tried to revive and regenerate the age-old Indian tradition of
reverence for nature and non-interference with nature excessively. It kin-
dles a ray of hope in our hearts that revival of old environmental ethics
would guide mankind to a safer and more peaceful path and retrieve our
losses inflicted on nature by our scientific and technological advance-
ments. Therefore, to avoid a major catastrophe or extinction of man-
kind, the following are suggested:
1. We must live in harmony with nature. Peaceful coexistence and
harmonious relation with nature must be the prime motto of our
life.
2. Forests, lakes, rivers, animals and birds, all should be treated
equally with man because they are complementary to each other.
Damage or destruction of one of them would invite the downfall of
the other.
3. Ahimsa Paramo Dharma.—We should follow the cult of
non-violence whether we deal with a man, tree or bird or animal.
4. We must have compassion for all living creatures.
5. Reverence for nature and reintegration with nature must be the
basis of our code of ethics and value system, because “the quality
of the environment depends upon the values that we espouse and
how we organise our societies”.

30. T. Damodar Rao v. Municipal Corpn. of Hyderabad, AIR 1987 AP 171.

31. Quoted in Sachidanand Pandey v. State of W.B.., (1987) 2 SCC 295.
32. Quote from T.N. Godavarman Thirumalpad v. Union of India, (2002)
10 SCC 606
623: AIR 2003 SC 724, 613.
1| ANCIENT INDIAN ENVIRONMENTAL ETHICS II

Abiding by the abovementioned principles we can hope that humanity

will return to consciousness in connection with the biosphere—to the
re-enhancement of nature and the implementation of the age-old Indian
environmental ethics. ;

3. ENVIRONMENTAL ETHICS

3.1 Anthropocentric to ecocentric approach: A paradigm shift

For last five decades, we have witnessed a world movement to preserve
and protect the environment, of which man is one of its components.
The first International Conference on Human Environment was held in
1972 at Stockholm and since then it takes place after every 10 years*.
The focal theme of this first international conference was “to defend and
improve the human environment for present and future generations”,
and that
The natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through careful
planning or management, as appropriate.**
Thus anthropocentric approach was the crux of the declaration, which
has repeatedly been followed in all other international conferences*
which were held during last four decades. This approach to maintain
ecological balance and prevent environmental degradation for the safe-
guard of the Homo sapiens was also adopted world over and Indian
Supreme Court also reiterated it in many pronouncements. The Supreme
Court always emphasised to preserve the quality of the various compo-
nents of environment—vegetation cover*’, air’’, water**’, land, fauna””’,

33. Second was held in 1982 at Nairobi, third in 1992 at Rio de Janeiro, fourth in 2002
at Johannesburg and fifth in 2012 at Rio de Janeiro.
34. Principle 2 of the Stockholm Declaration.
35.In “Earth Summit” Declaration (Rio de Janeiro Conference, 1992) Principle 1
declared that “Human beings are at the centre of concern for sustainable develop-
ment. They are entitled to a healthy and productive life in harmony with nature”.
Principle 6 of the Rio Declaration on Sustainable Development of 2012 observed
that “We recognize that people are at the centre of sustainable development and
in this regard we strive for a world that is just, equitable and inclusive, and we
commit to work together to promote sustained and inclusive economic growth,
social development and environmental protection and thereby to benefit all”.
36. Tarun Bharat Sangh v. Union of India, 1992 Supp (2) SCC 448: AIR 1992 SC 514;
Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431: AIR
1985 SC 652, T.N. Godavarman Thirumulpad v. Union ofIndia, (1997) 2 SCC 267.
37. M.C. Mehta v. Union of India, (2002) 4 SCC 356: AIR 2002 SC 1696; M.C. Mehta
(Taj Trapezium Matter) v. Union ofIndia, (1997) 2 SCC 353: AIR 1997 SC 734.
38. M.C. Mehta v. Union ofIndia, (1987) 4 SCC 463: AIR 1988 SC 1037, 1088, 2340.
39. Consumer Education & Research Society v. Union of India, (2000) 2 SCC 599: AIR
2000 SC 975.
 LAW [CHAP.
12 ENVIRONMENTAL

Other compo-
underground water", etc., to safeguard the human being.
present and
nents of the environment were to be protected to protect the
anthropocen-
future generation of mankind. This approach is known as
a paradigm
tric approach. Recently the Supreme Court of India has made
shift from its anthropocentric approach to ecocentric approach.

3.1.1 Anthropocentric approach

According to this approach other components or natural things are being
maintained, preserved or protected as they are essential for the exist-
ence of human beings. The “need” for mankind is the sole criterion to
safeguard the natural resources and to maintain the quality of them. If
we examine and analyse the international declarations, for example, the
Stockholm Declaration of 1972; Rio Declaration of 1992; Johannesburg
Declaration of 2002 and Rio Declaration of 2012; we will find that
human being has been kept in the midst of all things and that natural
resources may be utilised in such a way that it does not cause, directly
or indirectly, any harm to the humans. All the species of flora and fauna
must be maintained as it is necessary for the existence of mankind. The
Rio Declaration on Environment and Sustainable Development in the
year 2012 mentioned:
We recognise that people are at the centre of sustainable development and
in this regard we strive for a world that is just, equitable and inclusive, and
we commit to work together to promote sustained and inclusive economic
growth, social development and environmental protection and thereby to
benefit all (Principle 6).
Even the Brundtland Commission Report of 1987*! defined the term
“sustainable development” as “development that meets the needs of
the present without compromising the ability of future generations to
meet their own needs”. It also stresses on the survival and existence of
human beings and therefore an anthropocentric ethics. Abovementioned
declarations are the replication of the Stockholm Declaration of 1972
which observed that “the protection and improvement of the human
environment is a major issue which affects the well-being of peoples and
economic development throughout the world” and “Man has the funda-
mental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being,
and he bears a solemn responsibility to protect and improve the envi-
ronment for present and future generations”*?. Commitment to follow
40. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212: AIR
1996 SC 1446.
41. Our Common Future, 1987; Report of the World Commission on Environment and
Development.
42. Principle 1 of the Stockholm Declaration, 1972.
T| ANCIENT INDIAN ENVIRONMENTAL ETHICS 13

Stockholm Declaration has also been reiterated in all following interna-

tional declarations on human environment.
Moreover these international declarations have been accepted and fol-
lowed by the courts in many environmental cases. The court in M.C.
Z h* referred the Stockholm Declaration, 1972 and CASE PILOT
Brundtland Commission Report and observed that sustainable develop-
ment, inter-generational equity, polluter pays principle and precautionary
principles are part of our environmental jurisprudence. The court also
based its judgment on these principles but they all were based ono n_anthro-
pecker a Bokethdless the Supreme Court in Vellore Citizens’
V ort 1: f India** observed that to invoke stake princi- CASE PILOT
ples, itis a1 pre-requisite to assess the harm to the humans. The principle
of inter-generational equity also presupposes that exploitation of natural
resources must be equitably distributed between the present and future
generation. Thus humans have become the focal point in the protection
of natural resources. Similar approach was also adopted and applied in
the Taj Trapezium case*, Delhi Vehicular Pollution case**, Asbestos
Industries case*’ and Oleum Gas Leakage case**. In these cases envi-
ronmental pollution was the cause, but the end to be achieved was the
human health and well-being.
The anthropocentric approach/ ethics has been explained by the
Supreme Court:
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 biolog-
ical 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.”

43. (1997) 1 SCC 388; in this case the defendants made constructions in the river bed
of river Ravi and thereby changed the flow of the river, as a consequence of which
massive erosion took place, causing damage to vegetation cover of the nearby area.
44. (1996) 5 SCC 647: AIR 1996 SC 2715; this case was related to the discharge of
untreated toxic effluents of the tanneries in the open and in canals. This caused
destruction of fertility of land and contamination of water/underground water of
the area.
45. M.C. Mehta (Taj Trapezium Matter) v. Union ofIndia, (1997) 2 SCC 353: AIR 1997
SC 734.
46. M.C. Mehta v. Union ofIndia, (2001) 3 SCC 756: AIR 2001 SC 1948.
47. Consumer Education @ Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922.
48. M.C. Mehta v. Union ofIndia, (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC
1086.
49, T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362, 374.
 SHAP.
CH
14 LAW
ENVIRONMENTAL

Further that
environ-
Sustainable development, it has been argued by various eminent
with
mentalists, clearly postulates an anthropocentric bias, least concerned
Is
the rights of other species which live on this earth. Anthropocentrism
instru-
always human interest focused thinking that non-human has only
human
mental value to humans, in other words, humans take precedence and
responsibilities to non-human are based on benefits to humans.
The basis of this environmental ethics is the human needs and protection
for the exploitation of/damage to the natural resources. It allows to some
extent the exploitation of natural resources and pollution as the activity
in question does not causes irreversible harm or amount to hazardous
activity.

3.1.2 Ecocentric approach

But the Supreme Court of India has recently made a radical departure
from this approach and advocated for adoption of ecocentric approach.
This approach stresses on the intrinsic values of all the naturally present
things and that they, if preserved and protected, would help to preserve
and protect other forms of life on earth. Unknowingly at national and
international level there is a paradigm shift in the environmental eth-
ics. One of the reasons of this approach may be that it is prudent to
protect and preserve the vegetation species and species of fauna, which
will ultimately lead to the protection and preservation of human beings.
Secondly, it has been realised that much has been done in the form of
legislative and administrative actions, in a generalised way, to guard the
natural resources. But this was not found sufficient to safeguard various
species of flora and fauna which are on the verge of extinction or are vul-
nerable for extinction. Therefore, we are compelled to focus and resolve
to safeguard the individual and specific species of flora and fauna which
fall under this category. It was because all previous legislative, admin-
istrative and other measures adopted by the world nations were not
sufficiently enough to protect and preserve various kinds of vulnerable
species. Sometimes that species may not be of much or no use to human
being but they are now only in the form of “representative samples” of
nature. Because myriad forms of species of flora and fauna have been,
advertently or inadvertently, destroyed by human activities in the name
of development. In the words of hon’ble Radhakrishnan J:
Environmental justice could be achieved only if we drift away from the
principle of anthropocentric to ecocentric. Many of our principles like sus-
tainable development, polluter-pays principle, and inter-generational equity
have their roots in anthropocentric principles. Anthropocentrism is always
human interest focused and non-human has only instrumental value to
humans. In other words, humans take precedence and human responsibilities
T| ANCIENT INDIAN ENVIRONMENTAL ETHICS 1§

to non-human based benefits to humans. Eco-centrism is nature centered

where humans are part of nature and non-human has intrinsic value. In other
words, human interest does not take automatic precedence and humans have
obligations to non-humans independently of human interest. Eco-centrism
is therefore life-centered, nature-centered where nature include both human
and non-humans.°
Elucidating the need of ecocentric approach, the court clarified that
...ecocentric approach to environment stresses the moral imperatives to
respect intrinsic value, interdependence and integrity of all forms of life. Eco-
centrism 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.°!
It was also narrated in Isa Upanishad (about 4000 years old Hindu scrip-
ture) to explain that it has its roots in an age-old Indian environmental
ethics—‘“The universe along with its creatures belongs to the Lord. No
creature is superior to any other. Human beings should not be above
nature. Let no one species encroach over the rights and privileges of
other species.” Such approach and philosophy has also been highlighted
and found place in various international conventions, for example, in
Convention for Conservation of Antarctic Living Resources 1980, The
Protocol to Antarctic Treaty on Environmental Protection 1998, The
Bern Convention on Conservation of European Wildlife and Natural
Habitats 1982. The Convention on Biological Diversity, 1992 (CBD)
also supports this approach** and so the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES).
Since India is a participatory and signatory to these conventions, we are
bound by them. Thus India and other signatories are duty bound to ini-
tiate measures to conserve and protect threatened species in their natural
habitat. These two and other conventions do not require instrumental
value of species of flora and fauna but intrinsic value’ besides most of

50. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362.

51. Ibid, 374. The court has widely quoted Environmental Ethics: Stanford Encyclopedia
of Philosophy, 2002 (Revised Edn. 2008) to explain and support its reasoning.
52. The court has quoted with approval the preamble of CBD as
Conscious of the intrinsic value of biological diversity and of the ecological,
genetic, social, economic, scientific, educational, cultural, recreational and aes-
thetic values of biological diversity and its components,
Conscious also of the importance of biological diversity for evolution and for
maintaining life sustaining systems of the biosphere,
Affirming that the conservation of biological diversity is a common concern
of humankind....
53. “Intrinsic value, i.e. value in his or her own right independently for his or her pros-
pects for serving the ends of others... if the plant also has some value in itself inde-
pendently of its prospects for furthering some other ends such as human health or the
pleasure from aesthetic experience, then the plant also has intrinsic value.”
 16 ENVIRONMENTAL LAW [CHAP.

the instrumental value*. Therefore endangered, threatened with extinc-

tion and vulnerable species of flora and fauna must be safeguarded by
adopting ecocentric approach which is an intrinsic part of environmental
ethics.
The Supreme Court of India has also adopted and implemented this
ecocentric approach/ethics in recently decided three cases—1) T.N.
Godavarman Thirumulpad v. Union of India’; 2) T.N. Godavarman
Thirumulpad v. Union of India’*; and 3) Centre for Environmental
Law, World Wide Fund-India v. Union of India*’. In case 1, the ques-
tion involved was about protection and preservation of the “Asiatic
Wild Buffalo” found in Western and Eastern Ghats only; the case 2 was
relating to the preservation of “Red Sandalwood” which is found in
Andhra Pradesh, stated to be endangered species and case 3 was about
the safeguarding of the “Asiatic Wild Lion” (Panthera leo persica), an
endangered species. In first two cases the court explained the ecocentric
approach and narrated the necessity to apply it, but while deciding the
third case of Asiatic Wild Lion, the court started the judgment** with
the application of “ecocentric approach” as they have instrumental as
well as intrinsic value/worth. Commonly speaking, these three (Asiatic
Wild Buffalo, Red Sandalwood and Asiatic Wild Lion) do not carry any
value or are not of much use to human beings, but looking to their intrin-
sic value and that they are representative samples of nature, the court
ordered for taking necessary safeguards to preserve and look after them
as they are part of the nature—wildlife (animal kingdom). The court also
stated the necessity to change the approach—from anthropocentric to
=
=
ecocentric looking to the vulnerability of the species.
In
CASE PILOT of India”, the Center for Environmental Law filed a petition for saving
the Asiatic Wild Lion (Panthera leo persica)®, an endangered species,

54. It means it is “the value of things as means to further some other ends. They are also
useful as means to other ends. For another example, a certain wild plant may have
instrumental value because it provides the ingredients for some medicine or as an
aesthetic object for human observers”.
5S. (2042) 3 SCC 277:AIR 2012 SC 1254.
56. (2012) 4 SCC 362.
57. (2013) 8 SCC 234; decided on 15-4-2013.
58. In the opening para of the judgment, the court stated:
We have been called upon to decide the necessity of a second home for Asiatic
Lion (Panthera leo persica), an endangered species, for its long term survival and
to protect the species from extinction as issue rooted on ecocentrism, which sup-
ports the protection of all wildlife forms, not just those which are of instrumental
value to humans but those which have intrinsic worth.
59. (2013) 8 SCC 234; decided on 15-4-2013 (Judgment was pronounced
by K.S.P.
Radhakrishnan J).
60. It has been included in Red List published by the International Union for
Conservation
of Nature (IUCN) as “critically endangered species”.
T| ANCIENT INDIAN ENVIRONMENTAL ETHICS 17

“for its long term survival and to protect the species from extinction as
issue rooted on eco-centrism, which supports the protection of all wild-
life forms, not just those which are of instrumental value to humans but
those which have intrinsie worth”. The data collected by the Wildlife
Biologists highlighted the necessity of a second natural habitat (forests
in the State of Rajasthan or M.P.) for its long term conservation. Various
expert reports were examined and the court came to the conclusion that
Asiatic Wild Lion is an endangered species which must be preserved and
for that second home may be designated keeping in view the vulnerabil-
ity of the species and whether that place will be viable for that species
as Rhino of Assam cannot live in and sustain the plains of U.P. While
allowing the Kuno forest area the State of Madhya Pradesh directed:
We are also inclined to highlight the necessity of an exclusive parliamentary
legislation for the preservation and protection of endangered species so as
to carry out the recovery programmes before many of the species become
extinct and to give the following directions:
(a) NWAP (2002-2016) has already identified species like the Great Indian
Bustard, Bengal Florican, Dugong, the Manipur Brow Antlered Deer,
over and above Asiatic Lion and Wild Buffalo as endangered species and
hence we are, therefore, inclined to give a direction to the Government
of India and the MoFF to take urgent steps for the preservation of those
endangered species as well as to initiate recovery programmes.
(b) The Government of India and the MoFF are directed to identify, as
already highlighted by NWAP, all endangered species of flora and
fauna, study their needs and survey their environs and habitats to estab-
lish the current level of security and the nature of threats. They should
also conduct periodic reviews of flora and fauna species status, and
correlate the same with the IUCN Red Data List every three years.*!
Thus the court adopted an ecocentric approach to save the Asiatic Wild
Lion found in Gir forests of Gujarat. It also directed the government to
evolve strategies to preserve and safeguard other vulnerable or almost
extinct species of flora and fauna. It adopted and implemented this
approach for the preservation of an endangered species for the “spe-
cies best interest standard” and not the best interest of human beings.
Eco-centrism is, therefore, life-centered, nature-centered where nature
includes both humans and non-humans.
It was also emphasised that “all efforts must be made to implement the
spirit and provisions of the Wildlife (Protection) Act, 1972; the provisions
of which are salutary and are necessary to be implemented to maintain

61. Ibid, 265. The court also referred various international instruments like the
Convention on the Conservation of Migratory Species of Wild Animals held at Bonn,
1979; the Red List published by the International Union for Conservation of Nature
(IUCN), 2008; the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), 1973; the Convention on Biological Diversity, 1992 and
Stockholm Declaration of 1972 to arrive on this conclusion.
3
18 ENVIRONMENTAL LAW [CHAP.

ecological chain and balance”. The court also clarified that “the wild-
life encompasses all uncultivated flora and undomesticated fauna and
every species has the right to live and every threatened species must be
protected to prevent its extinction.” In-situ and ex-situ conservation and
measures are also essential to provide protection to the environs and
habitats of all rare and threatened species of flora and fauna under the
priority projects.
It was also made clear that while executing various central legisla-
tion [e.g., the Biological Diversity Act in the year 2002 followed by the
National Biodiversity Rules in the year 2004; Wild Life (Protection) Act;
Forest (Conservation) Act, 1980] and the various policies and plans [var-
ious policies and action plans such as the National Forest Policy (NFP),
1988; National Environment Policy (NEP), 2006; National Biodiversity
Action Plan (NBAP), 2008; National Action Plan on Climate Change
(NAPCC), 2008; the Integrated Development of Wildlife Habitats and
centrally sponsored scheme (NWAP) framed in the year 2009; National
Wildlife Action Plan (NWAP), 2002-2016], the approach should be eco-
centric and not anthropocentric’. The court declared:
the cardinal issue is not whether the Asiatic lion is a ‘family member’ or is
part of the ‘Indian culture and civilization’, or the pride of a State but the
preservation of an endangered species for which we have to apply the ‘spe-
cies best interest standard’. Our approach should not be human-centric or
family-centric but ecocentric. ‘Scientific reasoning’ for its re-location has to
supersede the family bond or pride of the people and we have to look at the
species best interest especially in a situation where the species is found to
be a critically endangered one and the necessity of a second home has been
keenly felt.
On the basis of this principle the court denied the reallocation of African
Cheetahs from Namibia to Kuno wildlife sanctuary (M.P.) and permit-
ted Kuno to be the second home for Asiatic Wild Lions, based at Gir
forest, Gujarat.

3.1.3 Conclusion
The judicial pronouncements made by the Supreme Court as mentioned
above are trend setters. It has been emphasised that we must adopt a

62. In this reference the court referred its previous pronouncements like—M.C. Mehta v.
Kamal Nath, (1997) 1 SCC 388; Lafarge Umiam Mining (P) Ltd. v. Union of India,
(2011) 7 SCC 338: AIR 2011 SC 2781; T.N. Godavarman Thirumulpad v. Union of
India, (2012) 3 SCC 277: AIR 2012 SC 1254 (Wild Buffalo case); T.N. Godavarman
Thirumulpad v. Union ofIndia, (2012) 4 SCC 362 (case relating to Red Sandalwood)
63. Centre for Environmental Law, World Wide Fund-India v. Union of India,
(2013)
8 SCC 234, 259. This finding of the court was also based on the recommendations
rk National Board of Wildlife and Wildlife Biologists of the Wildlife Institu
te
of India.
1| ANCIENT INDIAN ENVIRONMENTAL ETHICS 19

realistic and practical approach for the protection and preservation and
long term survival of species present on the planet Earth. This issue is
rooted on eco-centrism as it supports the protection of all species of
wildlife and plant life. It unequivocally declares that all those which has
instrumental or intrinsic value/worth for humans must be protected.
Previously the main emphasis was on anthropocentric approach, means
protect whatever has instrumental worth to humans. This reminds us an
old US landmark case—Tennessee Valley Authority v. Hiram G. Hill*
where the applicant wanted to preserve and protect a tiny fish—Snail
Darter. This fish was discovered in a soon-to-be-flooded stretch of the
Little Tennessee River dam project area. The construction on a dam that
had already cost taxpayers US $100 million came crashing to a halt.
Because of the Endangered Species Act, 1973, the Snail Darter was
instantly transformed into both an icon for species preservation and a
despised symbol of the environmental movement’s alleged excesses. The
court ordered for halt of the water filling in the dam as that could have
destroyed the tiny fish, though US $110 million had already been spent
on the construction of the dam. The intense legal battle was contested
all the way to the Supreme Court of US. The US Supreme Court did not
permit the authorities to fill the water in the dam area fearing it would
cause irreparable loss and that one of the species would be gone forever.
The court found it as one of the endangered species under the
Endangered Species Act, 1973. The abovementioned decisions of the
Indian Supreme Court, in the absence of such Endangered Species Act,
1973, propounded the theory of “ecocentric approach” to preserve and
protect the endangered species of flora and fauna, may be they do not
possess instrumental value to Homo sapiens but they have intrinsic val-
ues. Therefore this approach must be adopted to safeguard the existence
of vulnerable, endangered and species on the verge of extinction of the
animals and plants. It is to be remembered that whatever species of plants
and animals we have today are only the representative samples of vast
variety of species of flora and fauna we had with us. Enormous number
of species have been destroyed by human activities, but whatever residue
we have must be defended and looked after by this generation for prog-
eny. Thus the Supreme Court has pathfinder and landmark judgments
and come out with a new philosophy of the protection of environment.

64. 57 L Ed 2d 117: 437 US 153 (1978) popularly known as the Snail Darter (name of a
fish) case.
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 CHAPTER 2
Pollution: Causes and Kinds

1. CAUSES OF POLLUTION AND

ENVIRONMENTAL DEGRADATION
Causes of pollution and environmental degradation are of two types:
1. Natural causes
2. Man-made causes

1.1 Natural causes

Drought, flood, cyclone, earthquake, molten lava of volcano, hurricane,
twister, torrents, epidemics are the main natural causes/factors which
cause environmental pollution. Since they are agents of nature and man
has no control over them, they are known as natural causes.

1.2 Man-made causes

There are four main man-made causes:
1. Population growth
2. Poverty
3. Urbanisation
4. Industrialisation

1.2.1 Population growth

“The earth is finite and world population is infinite.” Every new face con-
sumes lots of natural and non-natural products, which are also ultimately
provided after exploiting natural resources. Thus, every birth increases
the consumption of natural resources. But it is true that “a finite world
can support only a finite population”. In other words, natural resources
shrink as people multiply. The world’s population has grown almost five-
fold from 1.17 billion to 5.1 billion in this century.
 LAW [CHAP.
22 ENVIRONMENTAL

per
India alone has 16 per cent population of the world with only 2.4
crore
cent area of the total world land area. With its population of 20.34
in 1871, it crossed the mark of roo crore recently on 11 May 2000. This
rise in urban population is at a very high rate. It indicates an increas-
ing demand for fuel, food, water, pollution-free air, space to live in and
healthy conditions of life. Increasing population of urban areas has cre-
ated the problem of land pollution, air pollution, water pollution, insan-
itary conditions, slums—all cumulatively affecting adversely the quality
of life. This is why Kolkata and Delhi are rated as “choked cities”. The
Supreme Court had to order shifting of polluting industries from Delhi
and not to ply vehicles which are more than 15 years old.
Continuous rise in population has enhanced the density of population
in various areas which has also created various social, physical and psy-
chological problems for the people. Space required for the population
has also resulted in deforestation and disappearance of vegetation cover,
which is only 13 per cent of the total area against 33 per cent which is
very essential.
Increasing population also results in poverty which is also a cause of
pollution. Daily increase in population means more coal, diesel, petrol to
burn; more iron and other metals for daily use; more means of transpor-
tation creating air pollution; more clothes to put on which also use up
natural resources; more furniture and paper to use which in turn result
in cutting of more space trees; more space to live in; more water to drink
and for agricultural purposes. As a matter of fact increased population
of India has caused housing problems, shortage of food and transporta-
tion, insanitary conditions, loss of nutritious food. All this cumulatively
affects the quality of life which is implicit in the right to life in Article 21
of the Indian Constitution. Thus, all this makes an impact on the human
environment. For example, if we want to increase food production, pes-
ticides will be used which may yield more production but cause chemical
pollution of land, water and air, and hazardous waste. Disappearance of
vegetation cover has also reduced the animal kingdom. It is also to be
noted that “sustainable development is closely linked to the dynamics of
population growth”.

1.2.2 Poverty
Poverty contributes equally to both—population growth and environ-
mental pollution. “Poverty” has been defined as “the inability of an indi-
vidual or household to attain a minimal standard of living”.! The poor
usually have low life expectancy, high infant mortality, higher incidence

1. Our Planet, Our Health, Report of the World Commission on Health and
Environment (1992) 38.
2| POLLUTION: CAUSES AND KINDS 23

of disablement and higher consumption of natural resources in the

form of food, fodder and fuel. Unhygienic and insanitary conditions are
another by-product of poverty affecting human health. “Poverty reduces
people’s capacity to use resources in a sustainable manner, it intensifies
pressure on the environment.”
Sadly, the impoverishment of the poor is accompanied by simultaneous and
systematic erosion of the basic means of their subsistence, the environment,
with its life-supporting natural resources—land, water and forest. It has
now aptly been observed that we need no magnifying glasses to see how
inextricably the poor and poverty are linked to the environment.”
Planned and unbridled destruction of forests has affected the poor,
nomadic groups and tribes in forests and who fulfil their fundamen-
tal needs from the forest and its products. Thus, if trees disappear,
rains will be scarce, water resources will dry up, water table would go
down— food, fodder, fuel will not be available, and lastly, destruction
of vegetation means increased chances of drought and dry season. It may
be slow but definite destruction of human environment, because poor in
rural areas totally depend upon forests and their products.
In urban areas, problems of slums, pavement dwelling, insanitary con-
ditions, commotion, shortage of food, increased demand of coal, fire-
wood and kerosene, shelter and energy are intimately connected with
poverty leading to environmental degradation and human health prob-
lems. Therefore, the need of the times is some strategy including legal
strategy to contain the problem of poverty and to have sustainabie devel-
opment and healthy environment.
In Olga Tellis v. Bombay Municipal Corpn.’, the Supreme Court
observed that before pavement dwellers and slum dwellers are evicted CASE PILOT
they must be provided alternative sites with basic amenities like water,
community latrines, paved streets and lighting as to guarantee whole-
some environment under the expanded horizon of the right to life.

1.2.3 Urbanisation
Rapid and unplanned urbanisation had also contributed to environmen-
tal pollution and degradation of human environment. This is the result of
rapid population growth and unending migration of the poor from small
towns and villages to urban centres. Now more than one-fifth popula-
tion of the nation lives in urban areas. Therefore, urban population of
metropolitan cities are increasing day-by-day. Slums are a major problem
of big cities and significant contributors to environmental degradation.
Slums’ population is continuously on the increase as shown in Table r:

2. Our Common Future, Report of the World Commission on Environment and

Development (1987) 49.
3. (1985) 3 SCC 545: AIR 1986 SC 180.
 24 ENVIRONMENTAL LAW

TABLE 1 Increasing slums’ population in metropolitan cities

City 1981 1991 2001

Total Slums Total Slums Total Slums

A 1.52 ani 6.98 | | (1.96 :
Chennai
ms i ae 4.29
tate oe a, sa 1.38
ed ee = jet coe: ic case caked aareathe $26
ity 2O MTS Ee 8 ner Hs ee 2975 OT Hi ates sain en sea ee
air AE© ca te ‘i ee Ai P hese: rn ss ae a sg Fi

Source: Anon (1996) A Compendium ofIndian Slums (Ministry of Urban Development, Govt. of India, New Delhi) 20.
Published in “State of India’s Environment”, The Citizen's Fifth Report (1999) 115.

The Centre for Science and Environment in its fifth report (1999) has
observed:
India is facing a total collapse of urban environment. While industrial cities
like Ludhiana and Tiruppur are drawing in toxic wastes and industrial pol-
lution, non-industrial towns like Aligarh and Bhagalpur are swamped with
domestic waste. As water-supply agencies have failed in every single town
to supply clean and adequate water, people are turning more to the use of
groundwater, depleting and polluting its reserve. Rivers and streams that
pass through towns are turning toxic... .*
Thus, there is callous disregard for a once abundant natural resource
(water), careless disposal of wastes, particularly hazardous wastes, and
unwillingness to safeguard basic environmental rights of citizens.
The observations of Shri Nath on urbanisation and environment are
very relevant.° Some of them are as follows:
Environmental factors have been given too little consideration in the think-
ing on urbanisation in India. Yet they are extremely important and their
importance will increase with increasing urbanisation. The levels of water
and air pollution are already high in many cities, and they could increase to
intolerable levels with further increase in their populations.
Pollution of river waters, by discharges of untreated sewerage by cities and
towns, by industrial effluents and by chemicals dissolved in soil wash from
the fields is also increasing rapidly with urbanisation, industrial growth and
modernisation and intensification of agriculture.
Anyone familiar with large Indian cities is well aware of high level of air
pollution, caused by smoke from domestic fires, factories using coal
as fuel,
and by motor vehicle exhausts.... The high incidence of cough,
breathless-
ness, and problems such as asthma, bronchitis, sneezing, and
nasal blocks
among people in Chembur area in Mumbai are attributed to
constant expo-
sure to high level of air pollution.... Fears have been expre
ssed about the
effect of power plants and refinery emissions on targets rangi
ng from human
lungs to ancient monuments.

4. State of India’s Environment, Citizen’s Fifth Repo

rt (1999) 207 (CST).
5. Nath, “Urbanisation in India”, Economic and
Political Weekly, 22-2-1986, 339.
2] POLLUTION: CAUSES AND KINDS 25

= v. State of Rajasthan’ highlighted the insanitary condition

prevailing in shiek city— oo as the Pink City of the world. The CASE PILOT
court gave six months time to clean up the city as it was the primary,
mandatory and obligatory duty of the municipality to clean the city and
remove filth. The plea of poor finance and paucity of staff cannot be the
reason for non-performance of the statutory duty. It was observed by the
court that keeping the city unclean and non-removal of filth amounts to
violation of right to life under Article 21, “as it amounts to slow poison-
ing and reducing the life of the citizen because of the hazard created”.
Similarly, T. Damodar Rao v. Municipal Corpn. of Hyderabad’ made
it very clear that unbridled right to the owner to enjoy his piece of land
is not absolute—may the State be the owner of the piece of land. This
right of ownership is subject to the law of ecology and environment—as
zoning laws. Any construction for residential purpose on the land allot-
ted for a recreational park would upset the environmental balance of
the area. Though the residential houses were constructed by the Income
Tax Department (the State), but it is the constitutional duty of the State
to protect and improve the environment and not to cause environmental
imbalance. “Article 21 of the Constitution embraces the protection and
preservation of nature’s gift without (which) life cannot be enjoyed.” It
was a case of the city of Hyderabad. The Bombay High Court also did
not permit to disturb the development plan in which a plot was reserved
for a garden. The State wanted to use that plot for the construction of
a 12-storey building for Ministers of the State. The court directed the
State not to proceed with the construction as the plot was reserved for a
garden in the draft development plan.*
In some cases, the plight of megapolitans like Delhi and Mumbai
have been highlighted in various Supreme Court pronouncements. The
problem of municipal solid waste has been discussed in B.L. Wadehra v.
Union of India? and Almitra H. Patel v. Union of India'® by the Indian
Supreme Court. The court observed:
Historic city of Delhi— the Capital of India—is one of the most polluted
cities in the world. The authorities responsible for pollution control and envi-
ronment protection have not been able to provide clean and healthy environ-
ment to the residents of Delhi. The ambient air is so much polluted that it is
difficult to breathe.... River Yamuna—the main source of drinking-water
supply —is the free dumping place for untreated sewage and industrial waste.
Apart from air and water pollution, the City is virtually an open dustbin.

6. AIR 1988 Raj 2.

7. AIR 1987 AP 171.
8. Maneck Davar v. State of Maharashtra, WP (OS) No. 2032 of 1983, order dt.
3-10-1984 (Bom).
9. (1996) 2 SCC 594: AIR 1996 SC 2969.
10. (2000) 2 SCC 679: AIR 2000 SC 1256.
 26 ENVIRONMENTAL LAW [CHAP.
7 ,

Garbage strewn all over Delhi is a common sight.... Jt is no doubt correct

that rapid industrial development, urbanisation and regular flow of persons
from rural to urban areas have made major contribution towards environ-
mental degradation.
Thus, the court ordered for scientific and proper disposal of waste so as
to subserve the common good. The court also directed and authorised
municipal corporation officers and other statutory authorities to levy
and recover charges and costs from any person littering or throwing rub-
bish and causing nuisance so as to affect sanitation and public health or
violating provisions of diverse Acts, bye-laws and regulations relating to
sanitation and health like the Municipal Solid Waste (Management and
Handling) Rules, 1999.

1.2.4 Industrialisation
Industry is the axis to gear up the economy of a modern society —known
as the indispensable motor of growth and development. On the other
side, it has been identified as a major source of environmental degrada-
tion and pollution. Therefore, “development without destruction” and
“sustainable development” are the crying needs of the day.
The problem we face is how to strike a balance between the benefits of rising
standard of living, and its cost in terms of deterioration of the physical envi-
ronment and quality of life. In the past the danger of polluting air, water and
land was not fully recognised, but now there is no doubt that it is a matter
of great concern.
Famous “Minamata disease” in Japan (1956), Bhopal Gas Tragedy
(1984), Hiroshima bombing of 1945, Three Miles Island incident of the
US (1979), Chernobyl (USSR) Atomic Reactor accident in 1986 have
shown that industrialisation has posed a serious threat not only to human
beings but also to animals, aquatic life and vegetation cover. On one
hand, industrialisation has helped us to raise the standard and quality of
life, on the other it has deteriorated the environment. Thus, pollutants
enter the environment through human activity. “Acid rain” is one of the
worst possible forms of pollution which is a result of industrialisation.
Industries degrade the environment and pollute it in the following
ways:
1. Use of natural resources by industries, as it destroys natu
re and
affects the natural environment. Cotton, textile, paper,
iron, coal,
oil, fodder, plywood, soap, sugar, tobacco, food processi
ng, pack-
aging, rayon, rubber, etc., all need natural products as
raw mate-
rial. Thus, increasing needs of industries have resul
ted in over
exploitation and stress on natural resources.
2] POLLUTION: CAUSES AND KINDS 27

2. Residues of industries known as effluents are released in water and

land without any treatment which pollutes the water and land,
affecting the aquatic life and underground water.
3. Fossil fuel used by industries like coal, kerosene, diesel and atomic
energy also pollutes the air in the form of smoke and radioactive
particles.
4. Noise, also a major by-product of industries and industrial prod-
ucts, causes noise pollution.
5. Industrial wastes—particularly hazardous waste and radioac-
tive waste—have also become a major environmental pollution
problem.
The industries which made the water of the holy river Ganga!! and a river
in
arenoe (Chennai)’? toxic were found to be tanneries. In M.C. Mehta
f India’* (Ganga pollution case), tanneries used to discharge CASE PILOT
destcenbadrsiach in the river’s water; and near Kanpur the water of the
river Ganga was found highly toxic. In the other case, the Palar river of
the State of Tamil Nadu (South) became highly polluted because tanner-
ies were discharging chemicals used in treating leather which resulted in
non-availability of potable water. Recently, the Supreme Court'* ordered
the closure of industries or to shift them from the territory of the State of
Delhi as their untreated effluent and sludge was polluting the holy river
Yamuna.’°
It is a noticeable fact that nearly 35 litres of water is used for one kilo-
gram of finished leather, resulting in dangerously enormous quantities of
toxic effluents being let out in the open or in water resources.
Yellowing of a historical monument—the Taj Mahal at Agra—was
also found to be due to foundries, chemical and hazardous industries
and an oil refinery. The sulphur dioxide emitted by the Mathura Refinery
combined with oxygen—with the aid of moisture—in the atmosphere,
forms sulphuric acid called “acid rain” affecting the marble of the Taj
Mahal. Therefore, the Supreme Court issued orders for shifting of 292
sapinganbosd from die Taj trapezium or to close them.’®
on Carbide Corpn. (2) v. Union of India’ the leakage of
MIC meri isocyanate) gas from the Union Carbide Corporation, CASE PILOT

Bhopal gave impetus to the development of environmental law and

11. M.C. Mehta v. Union ofIndia, (1988) 1 SCC 471: 1988 SCC (Cri) 141.
12. Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715.
13. (1988) 1 SCC 471: 1988 SCC (Cri) 141.
14. News Item, Hindustan Times; A.O.F.M. Yamuna v. Central Pollution Control
Board, (2000) 9 SCC 440: AIR 2000 SC 3510 (2); A.P. Industrial Components Ltd.
v. CCE, (2000) 10 SCC 5.
15. “S.C. Axe falls on all Delhi polluting units”, The Times ofIndia, 8-12-2000, I.
16. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353: AIR 1997 SC 734.
17. (1989) 2 SCC 540: 1989 SCC (Cri) 416.
 28 ENVIRONMENTAL LAW [CHAP.

principles of quantum of compensation.'* And leakage of oleum gas

from Shriram Food and Fertiliser Corporation gave an opportunity to
propound the principle of “no-fault liability” and “absolute liability and
non-delegable duty of the industry dealing in inherently dangerous and
hazardous activity”.'”
Thus, industrial activity produces four kinds of stresses on the envi-
ronment: 1) entropic, 2) exploitative, 3) disruptive substance, and 4) haz-
ardous material like lead, mercury, chromium, cadmium, and others.”°
The use of chlorofluorocarbon (CFC) by industries and industrial prod-
ucts has also caused global warming and depletion of ozone layer. All
this cumulatively polluted the environment to a dangerous level.

2. KINDS OF POLLUTION
Pollution is of two kinds:
1. Natural pollution
2. Man-made pollution

2.1 Natural pollution

Sometimes, nature also contributes to environmental degradation and
pollution. Some may be mentioned as natural calamities like—earth-
quake, flood, drought, cyclone, volcanic eruption, salinisation, spreading
of swamps, bogs, epidemic, fog, marshes, fires in forests, etc.

2.2 Man-made pollution

Any pollution in which human activity is involved and which was not
naturally there, is man-made pollution. It may be categorised as follows:
Air pollution
Water pollution
Land pollution
Noise pollution
a Radiation and radioactive pollution
lay.

2.2.1 Air pollution

Air is a mixture of various gases, particulate matter and
moisture that
forms the earth’s atmosphere. These gases consist of nitr
ogen, oxygen,
argon, carbon dioxide and others. It also includes trace
quantities of
18. Ibid.
19. bees Mehta v. Union of India, (1987) 1 SCC
395: 1987 SCC (L&S) 37: AIR 1987
SC 1086.
20. See, Shastri and Bakery, Industry, Environm
ent and the Law (1997) 90.
2] POLLUTION: CAUSES AND KINDS 29

ozone and inert gases”', water vapour, dust particles and plant spores.
If the quantity of any of the gases and other things exceeds permissi-
ble limits, the atmosphere is affected adversely. For example, by cutting
trees in excess, carbon dioxide will be released, and burning of fossil
fuel by industries releases sulphur dioxide which in reaction with atmos-
phere converts into acid rain. Thus, too many dust particles or too much
vapour in the air, which works as a catalyst, is hazardous to health. As
we are aware that the “greenhouse effect” is all because of release of
carbon dioxide in the air as a result of deforestation. The yellowing of
the historical Taj Mahal is the result of a substantial rise in the level of
pollution of sulphur dioxide (acid rain) and particulate matter which is
the result of use of coal by the industries and railways, use of diesel by
the large number of vehicles and Mathura refinery. Similarly, air pollu-
tion in Delhi and Calcutta and creation of smog in metropolitan cities is
due to burning of fossil fuel by industries and vehicles. Substantial rise in
number of vehicles in big cities have made them choked cities.””
Air pollution affects adversely man and material, flora and fauna
equally. It gives birth to breathing trouble, blood diseases, eye problems
and various kinds of skin and lung diseases.

2.2.2 Water pollution

Water is known as the “elixir of life” and, therefore, is an important
factor in the life of an organism whether man, animal, plant or microor-
ganism. It is the main support system of human life on earth. Shortage
and unwholesomeness of water has, nowadays, become a major problem.
The water cycle has been affected by the change in climatic pattern
which is due to the “greenhouse effect”. The places which were getting
much water from rainfall are no longer getting it as the rainfall areas
have changed, resulting in shortage of water, low water table, drought
and at places floods, etc. Cherrapunjee is now no longer the place of
highest rainfall.
On the other hand, natural waterfalls, rivers and underground water
have been polluted and the water is no longer wholesome. It is due to
release of untreated effluents by industries in rivers and in open spaces,
throwing domestic and city wastes in the rivers, disposal of sewage
into nallahs and rivers; use of pesticides, fungicides, etc., in agriculture
also contribute to water pollution problems. It has become clear from

21. Inert gases are neon, helium, krypton, xenon, argon and radon.
22. “Calcutta Air Pollution ‘Alarmingly High’”, The Times of India, 9-9-2000, 7. (A
joint study by the National Cancer Institute and the University of Calcutta, has
revealed that smog or grossly polluted air of megapolis has caused ailments among
school children such as adverse lung reactions and genetic abnormalities in their
exposed tissues.)
30 ENVIRONMENTAL LAW [CHAP.

toxic wastes
various cases decided by courts”? that industrial and city
beings,
have become a health hazard problem affecting the life of human
vegetation cover and aquatic life. Moreover, the highly toxic effluents
destroy the potability of water.”
Most persons are suffering from water-borne diseases due to contam-
ination, unwholesomeness of water. Indirectly, “Minamata disease”, like
some other diseases, is also the result of toxic water. Cholera, infections,
hepatitis, salmonellosis, amoebic dysentery, worms, gastro-enteritis,
schistosomiasis are some of the main diseases caused by contaminated
water. This is so as the water is a carrier of bacteria, viruses, protozoa
and helminths. Even swimming in polluted water causes various skin
and intestinal diseases. Freezing of water does not kill these disease
organisms.

2.2.3 Land pollution

Land is the basis of flora and fauna, mankind and, as such, holds ter-
restrial life. It is a finite and inelastic resource. It is the main basis of all
human activities—like agriculture, afforestation, mining, transporta-
tion, housing, industry and commerce and it holds whatever is naturally
present on it.
Rising population, urbanisation, deforestation, unplanned mining and
industrialisation have polluted this important natural resource. Land pol-
lution here means to divest the earth from its natural landscape, deforest-
ation, denudation, discharge of untreated toxic substances on the land,
throwing unhygienic and toxic hazardous waste and contaminating the
natural contents of earth. The contamination of land not only affects the
natural environment on the earth but also affects the quality and whole-
someness of underground water. Land pollution causes the vegetation
cover to disappear, contaminates aboveground and underground water,
which in turn affects the animal kingdom. Excessive and imprudent use
of pesticides, fungicides and rodenticides has disturbed the combination
of soil, as sulphur dioxide, when it reacts with water, becomes sulphuric
acid and is highly toxic. Some industrial wastes, if discharged untreated,
cause the browning of underground water—affecting the potability and
quality of water.
Unbridled mining operations in hilly areas have also caused
eco-imbalances, as became evident from Rural Litigation and Entitlement

23.M.C. Mehta v. Union of India, (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987
SC 1086; M.C. Mehta v. Union of India, (1988) 1 SCC 471 (Ganga Pollution case);
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647: AIR 1996
SG: 27753;
24. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
2] POLLUTION: CAUSES AND KINDS 31

Kendra v. State of U.P.*> in which the mining operation damaged the

natural streams and polluted the streams’ water which rendered it unfit
for drinking and agricultural purposes. Slums and unhygienic conditions
also contribute to land pollution.
Dumping of garbage, biomedical wastes, hazardous wastes of indus-
tries, and sludge are the biggest sources of land pollution. Thus, preven-
tion and control of land pollution is a must for a healthy environment.

2.2.4 Noise pollution

Noise pollution has been identified as a “slow killer”.?° It is a gift of
modern industrial civilization which is invading environment in threat-
ening proportion and is an invisible but insidious form of pollution. The
Encyclopaedia Britannica”’ defines it as “any undesired sound” and
Encyclopaedia Americana”® defines it as “unwanted sound”. Tiffins
defines it as “a sound which is disagreeable for individuals and which
disturbs the normal way of an individual”. Various scientific studies have
proved it beyond doubt that noise is a great health hazard.
Noise not only causes irritation or annoyance but it also constricts the
arteries and increases the flow of adrenalin and forces the heart to work
faster, thereby accelerating the rate of cardiac ailments, the reason being
that continuous noise causes an increase in cholesterol level resulting
in permanent constriction of blood vessels, making one prone to heart
attacks and strokes. Health experts are of opinion that excessive noise
can also lead to neurosis and nervous breakdown.”’
Defective births and sometimes premature births and abortions are
caused due to noise pollution. Thus, there is an urgent need to contain
and control this lethal weapon of pollution.
Causes of noise pollution can be divided into two categories:
1. Natural causes—includes air, volcano, sea, rivers, exchanging
voices of living organisms including man and mammals, rustling
of trees, etc.
2. Man-made noise—machines and modern equipment of various
types, automobiles, trains, aeroplanes, religious and social func-
tions, construction works, loudspeakers, household gadgets, type
machines, etc.
Noise pollution affects human beings in many ways. Its known effects
are disturbance in sleep, communication, mental and physical health; it

25. (1985) 2 SCC 431: AIR 1985 SC 652.

26. See, Satish Shastri and Manju Trivedi, Noise Pollution—Its Scientific and Legal
Perspectives (Divya Publication, Jodhpur 1988).
27. Vol. 16 (1968) 558.
28. Vol. 21 (1969) 400.
29. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70.
 [CHAP.,
32 ENVIRONMENTAL LAW

evity and effi-

makes a man restless. It all cumulatively affects the long
of Pollution)
ciency of a man. Therefore, the Air (Prevention and Control
Act, 1986
Act, 1981 under Section 2(a) and the Environment (Protection)
all
have recognised it as one of the pollutants which has to be dealt with
seriousness. Necessary and specific measures are required to curb this
insidious pollution.

2.2.5 Radiation and radioactive pollution

The Chernobyl (USSR) Atomic Reactor incident and Three Mile Island
(1979) incident have amply proved that radioactive*® fallouts affect man
and material, flora and fauna equally by damaging them. Exposure to
x-ray radiation and atomic reactor plants is a big health hazard as it
causes somatic and genetic changes.
Nuclear energy which is, nowadays, a big source of energy has become
a big health hazard. Working in nuclear plants is hazardous to human
health and its disposal of wastes is inherently hazardous to soil, veg-
etation cover and aquatic life. Thus, man-made ionising radiation has
increased the risk to mankind. Some of the bad effects of radiation are
leukaemia and cancerous growth amongst the workers in atomic reac-
tors. There are two main sources of radiation, excepting x-ray machines
in hospitals. They are 1) nuclear plants, and 2) testing of atom bombs.
Both of them cause environmental pollution.
Radioactive fallouts were studied in Japan which were created due to
atomic bombs’ explosions at Nagasaki and Hiroshima. Similar studies
were also conducted during the Chernobyl incident, Three Mile Island
incident—the leakage from radioactive waste dumping.
Looking to its somatic and genetic effects, various measures have been
adopted to deal with radiation pollution. In India, the Atomic Energy
Act, 1962 and the Radiation Protection Rules, 1971 deal with this type
of pollution. Under the Act, the Central Government is required to pre-
vent radiation hazards, guarantee public safety and safety of workers
who handle radioactive substances. It also directs to ensure safe disposal
of radioactive wastes. Recently decided cases of the Supreme Court indi-
cate that there is still uncertainty as to the possible limits of radioactivity
in food products.*!

30. Radioactivity means “property exhibited by unstable isotopes of elements which

decay, emitting radiation, principally alpha, beta and gamma particles”.
31. Shivarao Shantaram Wagle (2) v. Union of India, (1988) 2 SCC 115: AIR 1988 SC
952 [Import of Irish butter alleged to have been contaminated by Chernobyl (USSR)
nuclear disaster]; and M.K. Sharma v. Bharat Electronics Ltd., (1987) 3 SCC 231:
AIR 1987 SC 1792, related to the exposure of workers to radiation and their rights
to protection against it.
2] POLLUTION: CAUSES AND KINDS 33

In a recently decided case (G. Sundarrajan v. Union of India**), the

court has dealt with, in detail, the safety and environment related aspects
of the Atomic Power Plant projects with special reference to Kudankulam
Nuclear Power Project of Tamil Nadu. The court has discussed national
laws, rules and international conventions, bilateral treaties, etc., relat-
ing to nuclear power plants, nuclear spent fuel, management of nuclear
wastes, etc.
The above discussion amply proves that environmental pollution is a
big hazard and threatening the very existence of mankind. It also tends
to destroy the gifts of nature so kindly bestowed on mankind. Looking
to threatening proportions of environmental pollution, various measures
have been adopted including myriad administrative and legal measures
from time to time. The Central Government and State Governments
have passed various statutes to contain and control the problem of envi-
ronmental pollution and ecological imbalances. Some of the significant
enactments relating to various aspects of environment are as follows:
1. Water pollution
(a) Environment (Protection) Act, 1986
(b) North India Canal and Drainage Act, 1873
(c) Ports Act, 1908
(d) River Boards Act, 1956
) Merchant Shipping Act, 1958
) Water (Prevention and Control of Pollution) Act, 1974
(g) Water (Prevention and Control of Pollution) Cess Act, 1977
2. Air pollution
(a) Boilers Act, 1923
(b) Factories Act, 1948
(c) Industries (Development and Regulation) Act, 1951
(d) Air (Prevention and Control of Pollution) Act, 1981
(e) Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003
3. Radiation
(a) Atomic Energy Act, 1962
(b) Radiation (Protection) Rules, 1971
(c) Chemical Weapons Convention Act, 2000
4. Health laws
(a) Medical Termination of Pregnancy Act, 1971
(b) Prenatal Diagnostic (Prohibition of Misuse) Act, 1994
5. Forest and wildlife
(a) Forests Act, 1927
(b) Forests (Conservation) Act, 1980

32. (2013) 6 SCC 620.

34 ENVIRONMENTAL LAW

(c) Wild Life (Protection) Act, 1972

(d) Biological Diversity Act, 2002
(e) Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006
6. Others
(a) Poisons Act, 1919
) Factories Act, 1948
) Insecticides Act, 1968
) Fisheries Act, 1897
) Prevention of Food Adulteration Act, 1954
) Urban Land (Ceiling and Regulation) Act, 1976
) Ancient Monuments and Archaeological Sites and Remains
Act, 1958
) Mines Act, 1952
) Mines and Minerals (Development and Regulation) Act, 1957
) Penal Code, 1860
) Criminal Procedure Code, 1973
) Explosives Act, 1884
(m) Easements Act, 1882
) Public Liability Insurance Act, 1991
) National Green Tribunal Act, 2010
) National Environment Tribunal Act, 1995
) National Environment Appellate Authority Act, 1997
(r) Motor Vehicles Act, 1988
The Environment (Protection) Act, 1986 also includes seven schedules
laying down the standards for quality of environment and for emission
or discharge of environmental pollutants, and nine notified rules on han-
dling and management of various hazardous substances.
 CHAPTER 3
Need for Environmental Law:
An Indian Perspective

Man is both creator and moulder of his environment, which gives him
physical sustenance and affords him the opportunity of intellectual,
moral, social and spiritual growth. In the long and tortuous evolution of
the human race on this planet, a stage has been reached when, through
the rapid acceleration of science and technology, man has acquired
the power to transform his environment in countless ways and on an
unprecedented scale. Thus, the natural environment, /.e. air, water, land,
trees, plants, animals, microorganisms, rivers, lakes, mountains, etc., is
adversely affected by man-made environment—by scientific and tech-
nological advancements through various inventions and discoveries.
Industries— particularly chemical industries — developments in the field
of atomic energy, concrete jungles, excessive use of fossil fuel and rise
in quality and standard of life resulting in exponential growth of pop-
ulation has badly affected the natural environment. Now, “a point has
been reached in history when we must shape our actions throughout the
world with a more prudent care for their environmental consequences”.
Through ignorance and indifference we can do massive and irreversi-
ble harm to the earthly environment on which our life and well-being
depend ... . To defend and improve the human environment for present
and future generations has become an imperative goal for mankind—a
goal to be pursued together and in harmony with the established and
fundamental goals of peace, and of worldwide economic and social
development.
It was cautioned by the Brundtland Commission:
Earth is one but the world is not. We all depend on one biosphere for sus-
taining our lives. Yet each community, each country, strives for survival
and prosperity with little regard for its impact on others. Some consume
the earth’s resources at a rate that would leave little for future generations.
 36 ENVIRONMENTAL LAW (CHAP.
’ >

Others, many more in number, consume far too little and live with the pros-
pect of hunger, squalor, disease and earthly death.’
Thus, the concept of “sustainable development” was mooted by the
UN World Commission on Development and Environment (1987),
which means “development that meets the needs of the present with-
out compromising the ability of future generations to meet their own
needs”.* Therefore, the goal of economic and social development must be
in terms of sustainability of a country.
On one hand, the unbridled use of scientific and technological advance-
ments has given mankind a free hand in exploiting the natural resources
without having regard to ecological considerations. This overexploita-
tion, in turn, has resulted in eco-imbalances and environmental degrada-
tion. Further, advanced industrialisation has given rise to myriad forms
of environmental pollution and health hazard activities. Industrialisation
with urbanisation has given birth to uncontrolled deforestation and
problems of insanitation, waste disposal, housing, potable water, air
pollution, acid rain. It has also resulted in the “greenhouse” effect and
ozone depletion. This all cumulatively affected adversely nature, the ani-
mal kingdom and human beings equally.*
The Bhopal Gas Disaster*, which is known to be the worst indus-
trial disaster of the world this century, indicates unplanned and uncon-
trolled industrialisation which is assuming threatening dimensions to
mankind. Secondly, industrial waste and waste from atomic sectors has
also posed a serious threat to flora and fauna and mankind. Whether it
is pollution of the holy water of the Ganga by tanneries, or pollution of
underground water in Bachchari (Udaipur) or at Pali, choking of Delhi
or Kolkata metropolis due to air pollution, yellowing of the marble of
national historical monument Taj Mahal, cancerous growth due to radi-
ation, or disappearance of vegetation cover due to acid rain, they all are
a few representative samples of threatening dimensions of the industrial
revolution.
Man’s capability to change his surroundings and increased develop-
mental activities to enhance the quality of life have also done incalcula-
ble harm to the representative samples of nature —air, water, land and
flora and fauna. Dangerous levels of pollution have caused unprecedented
and unaccountable harm to human beings, animal life, vegetation cover,

1. Our Common Future (1987) a>.

2. Ibid, As.
3. See, T.N. Godavarman Thirumalpad vy. Union of India,
(2002) 10 SCC 606: AIR
2003 SC 724, 613.
4. There was a leakage of methyl isocyanate (MIC)
gas from the Union Carbide
Corporation Industry located at Bhopal (MP) on 2-1 2-198
4 and 3-12-1984 in which
4000 persons died the same night and more than 2,00,
000 persons were taken ill
from various ailments.
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 37

living creatures. Overexploitation of forests have also destroyed natural

soil conservation, damaged water resources and natural compost and
natural beauty. It has also resulted in increased release of carbon dioxide
in the air (since trees are tlie pools/banks of the carbon dioxide), thereby
creating the “greenhouse” effect. This “greenhouse” effect has added to
global warming and change of climatic pattern throughout the world. As
a result of which there is rain in the Thar desert and Cherrapunjee is no
more a place of highest rainfall in the world.
Mrs Indira Gandhi, the then Prime Minister of India, was the first head
of State to address the International Conference on Human Environment
at Stockholm in 1972. She, voicing her concern about degrading envi-
ronment, opined that problem of pollution, poverty and population are
inter-related problems and must be tackled together. Thus, the subject of
environment started receiving a lot of attention since then.

1. TIWARI COMMITTEE, 1980

The Tiwari Committee was set up in February 1980 to suggest adminis-
trative and legislative measures that ought to be taken for the protection of
the environment. This committee submitted its report in September 1980
and made far-reaching recommendations. According to this report, the
following five areas needed immediate attention for protection of the
environment:
Land and water management.
Natural living resources.
Environmental pollution and environment impact assessment.
PP
WwW
bh
H Human settlements.
5. Environmental education and awareness.
The committee reviewed the existing laws relating to environment and
pointed out the following shortcomings:
Many laws were outdated.
The laws do not spell out policy objectives.
Some of them were mutually inconsistent.
H
PP
Rw The law did not have explicit provisions for adequate and effective
implementation of the laws.
5. There was no express provision or procedure to review the effi-
ciency and effectiveness of the laws.
As a result of this report, the Environment Department was set up at
both the levels —Central and State levels —and an independent Ministry
and department came into existence in 1981.
The Tiwari Committee (1980) also surveyed the laws in force at that
time—directly or indirectly related with the environment—and found
 [CHAP.
38 ENVIRONMENTAL LAW

gaps to be filled
their number as 200. But it was felt that there were some
z. air pollu-
and some of the areas of environment were uncovered—vi
required
tion. Further, it was recommended that to tackle environment it
rn-
cooperative, coordinative and cohesive effort on the part of the gove
ment and non-governmental organisations (NGOs).
On the basis of the study and analysis of the laws the committee sug-
gested many recommendations and some of the important ones are as
follows:
1. Comprehensive review and reform of some Central and State Acts
[such as the Insecticides Act, 1968; the Water (Prevention and
Control of Pollution) Act, 1974; the Forests Act, 1927].
2. To legislate on new areas of environment hitherto not covered by
the existing laws, for example, concerning toxic substances.
3. Introduction of “environmental protection” in the Concurrent List
of the Seventh Schedule.°
The report of the Tiwari Committee has also been criticised as it drew
conclusions on the basis of haphazard collection of laws not explic-
itly dealing with environment protection only, and that no systematic
and scientific approach was adopted to arrive at the conclusions of the
committee.
The Tiwari Committee also pointed out that most of the laws are at
variance with the National Environment Policy which not only envisages
conservation and development but also equity amongst the people shar-
ing the environment as they come in the way of production, industrial
and demographic development.
Dr Chhatrapati Singh has suggested that environmental laws can be
classified structurally under the following heads and sub-heads:

TABLE 1: Structural basis of environmental laws°

Protective laws Planning laws

For human beings For non-human beings For production Fordistribution

SS s0i tc Bae ieee ates

MISE
5 cn
dlp Matimetfe asuas
wide Pe Housing a hea...
les bie apa
aes | ME clekdgcy -hth)

5. See, “Report of Committee for Recommending Legislative Measures and

Administrative Machinery for Ensuring Environmental Protection”, Department
of Science & Technology, Govt. of India, 15-9-1981, 24. See, for more details and
review of the recommendation, Chhatrapati Singh, “Environment and the Law”, in
Nathawat Shastri, Man, Nature and Environmental Law (1988) 97.
6. Chhatrapati Singh, “Environment and the Law” in Nathawat Shastri, Man, Nature
and Environmental Law (1988) 107.
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 39

(contd.)
Protective laws Planning laws
For human beings For non-human beings For production For distribution

Rs ton ok ne some aa we SieSoda

MALE cts Eantigation OO Sanctuaries
Ss ee sald Crmentteaar.
on.Devtorang
ikrs aod.iia
Environ ste
SUMS et soit wl

There were certain factors which led to and became the goading force
to pass various laws relating to environment by the Indian Parliament.
These factors cumulatively created an atmosphere to legislate on var-
ious aspects of environment including the umbrella legislation—the
Environment (Protection) Act, 1986. These incidents, discussed below,
aroused a consciousness that development cannot be made at the cost
of the environment and it does not give a right to destroy the ecology,
degrade the environment and pose a health hazard activity.

1.1 “Magna Carta” on human environment

The first UN (International) Conference on Human Environment held in
June 1972 (from 5 to 16 June 1972) in Stockholm declared, “to defend
and improve the human environment for present and future generations
has become an imperative goal for mankind”. Therefore, it called upon
the governments and people of the world to exert common efforts for
the preservation and improvement of the human environment. Twenty-
six principles were resolved in the conference which are known as the
Magna Carta on Human Environment.
The then Prime Minister of India, Mrs Indira Gandhi, was the first
head of State to address this conference and voice her concern about the
eco-imbalances, environmental degradation and pollution problem. Since
India was one of the signatories of this conference, it passed various stat-
utes to improve and protect the environment. It was felt that the protec-
tion and improvement of the environment is a major issue which largely
affects the well-being of human beings, flora and fauna, and economic
development of the world. The aims and objects of the major laws on
environment—namely, the Water (Prevention and Control of Pollution)
Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; the
Environment (Protection) Act, 1986; the National Environment Tribunal
Act, 1995 specifically mention that the Act has been enacted.
whereas decisions were taken at the United Nations Conference on the
Human Environment held at Stockholm in June 1972 in which India partici-
pated to take appropriate steps for the protection and improvement of human
environment.
40 ENVIRONMENTAL LAW [CHAP.

The Indian Supreme Court has also pointed out, time and again, that
the UN Conference on Human Environment created an awareness for
environmental protection.’ It has also been observed that the concept of
“sustainable development” was also introduced for the first time by the
Stockholm Conference of 1972. Now, this concept has been accepted as
a part of the customary international law.

1.2 “Our Common Future” and its effects

The World Commission on Environment and Development headed by
Gro Harlem Brundtland, the then Prime Minister of Norway, was asked
to formulate “a global agenda for change”. The commission gave its
report “Our Common Future” in 1987 and declared that various human
activities are against the activities of nature and the changes made in
natural planetary system “are accompanied by life-threatening hazards
from environmental degradation to nuclear destruction. These new
realities, from which there is no escape, must be recognised and man-
aged”. It has been warned time and again that the number, scale, fre-
quency and impact of natural and human-caused disasters are mounting.
And further:
the risks of irreversible damage to natural systems regionally, viz. through
acidification, desertification and deforestation, and globally (through ozone
layer depletion or climate change) are becoming significant.
The commission observed that the effects of environmental degradation
are far reaching and grave. Therefore, it suggested institutional and legal
changes at international, national and regional levels in six priority areas:
Getting at source
Dealing with effects
Assessing global risks
Making informed choices
Providing the legal means
Sab
Maer
haar Investing in our future
These priorities for institutional and legal changes are required to make
a transition to “sustainable development”.
One of the most significant aspects of this report is that it defined
and advocated for “sustainable development”. Chapter II of the Report
provides:

7. See, Rural Litigation and Entitlement Kendra v. State of

U.P., 1986 Supp SCC 517:
AIR 1987 SC 359; Vellore Citizens’ Welfare Forum v. Union of
India, (1996) 5 SCC
647; M.C. Mehta v. Union of India, (1992) 1 SCC 358: AIR
1992 SC 382; M.C.
Mehta v. Kamal Nath, (2000) 6 SCC 24g,
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 41

Sustainable development is development that meets the needs of the present

without compromising the ability of future generations to meet their own
needs.°
In Centre for Environmental Law, World Wide Fund-India v. Union
of India’, while explaining the term, the Supreme Court quoted with
approval the definition of the term “sustainable development” given
by the World Commission on Development and Environment in “Our
Common Future” and observed that various environmentalists think
that the term “postulates anthropocentric bias” and least concerned with
the rights of other sp

court explained: Case PLO

While economic development should not be allowed to take place at the cost of
ecology or by causing widespread environment destruction and violation; at
the same time, the necessity to preserve ecology and environment should not
hamper economic and other developments. Both development and environ-
ment must go hand in hand, in other words, there should not be development
at the cost of environment and vice versa, but there should be development
while taking due care and ensuring the protection of environment.'!
The need “in particular here means the essential need of the world’s
poor, to which overriding priority be given. Therefore, the goal of eco-
nomic and social development must be defined in terms of sustainabil-
ity” in developing and developed countries. The world’s nations aim to
achieve sustainable development instead of destructive process of growth
which includes over exploitation of natural resources. Various strategies
may be adopted for the same including sustainable level of population
in a country, merging environment and economics in decision-making
and poverty elimination. This all cumulatively reduces the pressure to
use natural resources and saves the natural environment. “In its broad-
est sense, the strategy for sustainable development aims to promote har-
mony among human beings and between humanity and nature.” This
can be achieved by securing effective citizen participation in decision
making and adopting a production system that respects the obligation to
preserve the ecological base for development.
The above definition has been quoted and explained by the Supreme
Court in various significant cases.'”
8. Our Common Future (1987) 43. Referred in Vellore Citizens’ Welfare Forum v.
Union ofIndia, (1996) 5 SCC 647: AIR 1996 SC 2715, 2720.
9. (2013) 8 SCC 234.
10. (1996) 5 SCC 281.
11. Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281,
aras3t.
£2, C. ieathaaies v. Union of India, (2013) 6 SCC 620; Intellectuals Forum v. State of
A.P., (2006) 3 SCC 549: AIR 2006 SC 1350; Bombay Dyeing & Mfg. Co. Ltd. (3) v.
Bombay Environmental Action Group, (2006) 3 SCC 434: AIR 2006 SC 1489; M.C.
42 ENVIRONMENTAL LAW |CHAP.

It has also been made clear that sustainable development and cor-
porate social responsibility (CSR) are inseparable twins, integrated
into the principles of inter- and intra-generational equity, not merely
human-centric, but ecocentric. Here, “CSR is envisaged as a commit-
ment to meet its social obligation by playing an active role to improve
the quality of life to the communities and shareholders on a sustainable
basis’ .afYi
Another major contribution of this World Commission’s Report is that
it introduced the concept of “polluter pays principle” and “precaution-
ary principle”, which are essential features of the concept of sustainable
development.'*
“Polluter pays principle”, though was adopted in 1972 by Organisation
for Economic Co-operation and Development (OECD) countries'’, was
explained by the commission thus, “enterprises may be encouraged to
invest to prevent restorative and compensatory measures with subsidies
of various kinds” and “to internalise environmental costs” and reflect
them in the prices of products. Thus, the concept was that an industri-
alist is the person who must pay for pollution, damage to person and
property and to restore the environment. The Indian Supreme Court has
adopted this principle in various cases.
In T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v.
Union of India, the Supreme Court declared that there are two salu-
tary principles which govern the law of environment: 1) the principle of
sustainable development, and z) the precautionary principle. And that
sustainable development is essentially a policy and strategy for continued
economic and social development without detriment to the environment
and natural resources, on the quality of which continued activity and
further development depend. We owe a duty to future generations and
for a bright today, bleak tomorrow cannot be countenanced.®
The “precautionary principle” means that industries and the govern-
ment must ascertain, prevent and abate the environmental pollution and
its causes which can cause significant harm.
The commission provided for necessary changes to be made at
national and international levels to cope with the new situations and save

Mehta v. Union of India, (2004) 12 SCC 118: AIR 2004 SC 4016; Tirupur Dyeing
Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., (2009)
9 SCC
737 and others.
13. G. Sundarrajan v. Union ofIndia, (2013) 6 SCC 620, 684.
14. Kuldip SinghJ in Vellore Citizens’ Welfare Forum vy. Union
of India, (1996) 5 SCC
647: AIR 1996 SC 2715, 2720-21.
15. OECD, “Guiding Principles Concerning International Economic Aspect of
Environmental Politics, Council Recommendation” (1972) 128 Paris 26-5-1972.
16. T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606: AIR
2003
SC a4,
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 43

mankind from environmental disaster. It opined that national and inter-

national law has traditionally lagged behind events. Today, legal regimes
are being rapidly outdistariced by the accelerating pace and expanding
scale of impacts on the environmental base of development. Human
laws must be reformulated to keep human activities in harmony with
the unchanging!’, and universal laws of nature. The commission also
proposed and adopted 22 legal principles to be adopted by the members
of the UNO for the protection of environment and sustainable develop-
ment. These principles have been divided into four categories: 1) general
principles, rights and responsibilities; 2) principles, rights and obligations
concerning transboundary natural resources and environmental interfer-
ence; 3) State responsibility; and 4) peaceful settlement of disputes. Some
of the important principles are as follows:
rt. All human beings have the fundamental right to an environment
adequate for their health and well-being.
2. State shall conserve and use the environment and natural resources
for the benefit of present and future generations.
3. State shall maintain ecosystem and ecological processes essential
for the functioning of the biosphere, shall preserve biological diver-
sity, and shall observe the principle of optimum sustainable yield in
the use of living natural resources and ecosystem.
4. State shall establish adequate environmental protection standards
and monitor changes in and publish relevant data on environmen-
tal quality and resource use.
5. States shall make or require environmental assessment of proposed
activities which may significantly affect the environment or use of
a natural resource.
6. Strict liability.—State shall take all reasonable precautionary
measures to limit the risk when carrying out or permitting certain
dangerous but beneficial activities and shall ensure that compensa-
tion is provided should substantial transboundary harm occur even
when the activities were not known to be harmful at the time they
were undertaken.
7. State responsibility. —State shall cease activities which breach an
international obligation regarding the environment and provide
compensation for the harm caused.
The court has also declared that principles of sustainable development,
polluter pays principle, inter-generational equity have their roots in the
anthropocentric principle/approach.’*

17. Our Common Future (1987) 330.

18. T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277, 283: AIR
2012 SC 1254.
44 ENVIRONMENTAL LAW [CHA P.

1.3 Judicial vigil

There were also significant judicial pronouncements which also led to
the passing of the Environment (Protection) Act in 1986. There are some
cases which need special mention.

1.3.1 “Silent Valley case”””

In this case it was pointed out by the petitioners that the “Silent Valley”, in
the district of Palghat in Kerala, contained one of India’s largest tropical
evergreen forests and is the only vestige of virgin forests of the Western
Ghats. The petitioners claimed that it has a continuous record of not less
than 50 million years of evolutionary history with diverse and complex
flora and fauna. It has unique vegetable food resources for mammals and
birds in the valley. Various endangered plants and animals live there.
The forest also performs various important functions which include
water supply to the plains by retaining rainwater in the soil, maintaining
hydrological balance, averting floods and droughts, checking soil erosion
and regulating climatic conditions of the area. Therefore, the petition-
ers filed a writ seeking to forbid the State of Kerala from proceeding to
construct a hydroelectric project in this valley which could damage this
rarest of rare flora and fauna of the area, thereby adversely affecting
the environment. Reports of scientists and experts were also presented
before the court which warned against the proposed construction.”°
Sufficient proof and technical information was also provided to show
that Silent Valley Hydroelectric Project was neither essential nor unavoid-
able. The Chairman of the Task Force appointed by National Committee
on Environmental Planning and Coordination (NCEPC) to examine the
project opined that the safeguard to be taken to complete the project
would not be able to prevent the damage to the fragile ecosystem and the
unique ecological character of Silent Valley should not be touched.
The adverse effects of the proposed Hydro-Electric Project were listed
as follows: 1) deforestation was bound to affect the climatic conditions
of the State; 2) the preservation of the forest was needed for conducting
research in medicine, pest control, breeding of economic plants, etc.; and
3) deforestation was bound to interfere with the balance of nature and
extinction of lion-tailed monkey.
The Advocate General pleaded that the State Government had already
taken into consideration the above points affecting the ecology of the
area. Moreover, it was essential to provide electricity to people of the

19. Society for Protection ofSilent Valley v. Union of India, OP Nos.

2949 and 2025 of
1979, decided on 2-1-1980 (Ker).
20. The Exhibit P2 included a representation signed by 35 scientists,
40 professors, 150
post-graduate students of ecology and others.
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 45

State. Further, the State Legislature was unanimous in adopting the res-
olution for the project. A Task Force was appointed to recommend the
safeguards to be taken for the protection of the ecology of the area.
The Kerala High Court refused to interfere in the matter and relied
heavily on the government position and declared:
... We Cannot substitute our judgment for that of the Government, on the
question as to whether a national asset is to be more conveniently utilised as a
hydroelectric project with prospects of greater power generation or retained
in its pristine glory for preservation of forests and wildlife, preservation of
soil erosion, and avoidance of other deleterious effects on the community.
The above-quoted part of the judgment amply clarifies that the courts
and the government gave low priority to environmental issues and it
reveals that the prevailing laws were sufficiently couched and competent
to deal with such situations.

22... LEK case”

This Dehradun lime quarries case is a landmark case in the history of
environmental law. The Supreme Court also observed:
this is the first case in the country involving issues relating to environment
and ecological imbalance and the questions arising for consideration are of
grave moment and significant not only to the people residing in Mussoorie
Hoalbos374
This also brought to fore the conflict between development and
conservation.
The Rural Litigation and Entitlement Kendra (RLEK)—a voluntary
organisation—wrote a letter to the Indian Supreme Court which was
accepted as a writ petition. The main allegation of the RLEK was that
there were unauthorised and illegal mining operations carried on in
Mussoorie hills and nearby areas adversely affecting the ecology of the
area and leading to environmental disturbances. The erratic, irrational
and uncontrolled quarrying of limestone stripped bare the verdant cover
of the hills as the green cover was reduced from 70 per cent to Io per
cent. Reckless mining operations, careless disposal of the mines debris
and random blasting operations disturbed the natural water system, and
supply of water for drinking and irrigation purpose also went down.
Transportation and resultant vibrations caused damage to the green cover
and the water sources. On the other hand, the lime deposits of the area
was of high grade having up to 99.8 per cent calcium carbonate, used for
purifying iron ore. The supply of lime from this area was estimated to
satisfy 3 per cent of the country’s demands. It was used to manufacture

21. Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp SCC 517.
22. Ibid; Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431.
 46 ENVIRONMENTAL LAW [CHAP.

special kind of steel—which was used for the manufacture of arma-

ments to be used for the defence services. But the quarrying operations
destroyed the homes of birds and compelled the residents of the area to
shift from that place. More than roo miners joined the defendants.
The Indian Supreme Court, when it received the letter from RLEK,
acting promptly prohibited the blasting operations in 1983 with a view
to determine if the mines were operated in compliance with the safety
standards laid down in the Mines Act, 1952. It also appointed the
Bhargava Committee—an expert committee—to assess the effects of
mines on the ecology of the area. In March 1985, on the recommenda-
tion of the Bhargava Committee, the Supreme Court ordered that for
the most dangerous mines and mines falling within the Mussoorie city
renewal of lease be denied and their operations be stopped. Operations
of other mines were also stopped subject to review of another committee
(Bandopadhyay Committee). This category of mines, which were under
the control of the U.P. government, were allowed to operate as they were
causing less damage to the environment.
The courtin its judgment cautioned “greater control and vigil over the
operations and [had] strike a balance between preservation and utilisa-
tion ...”*> as the stake involved in the matter is large and far-reaching. The
court warned:
We are not oblivious of the fact that the natural resources have got to be
tapped for the purpose of social development but one cannot forget at the
same time that tapping of resources have to be done with requisite attention
and care so that ecology and environment may not be affected in any serious
way .... It has always to be remembered that these are permanent assets of
mankind and are not intended to be exhausted in one generation.4
It was also pronounced by the court that preservation of environment
and keeping the ecological balance unaffected is a task which not only
governments but also every citizen must undertake, as it is a social obli-
gation and “fundamental duty” of all the citizens under Article 51-A(g)
of the Constitution. The court placed on record the action of RLEK and
asked to pay % 10,000 to the Kendra for taking steps to protect the envi-
ronment and ecology of the area.
The Supreme Court after that has made seven reported judgments
regarding this case.

1.3.3 “Bhopal Gas Disaster case”, 1985

The worst industrial disaster of the century took place on
2 and 3
December 1984. Forty tons of. highly toxic gas—methyl
isocyanate

23. Rural Litigation and Entitlement Kendra v. State

of U.P., AIR 1987 SC 359.
24. Ibid. '
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 47

(MIC)—which had been manufactured and stored in the Union Carbide

Corporation (UCC), leaked from this chemical plant killing more than
3000 persons and about 2,060,000 persons were taken ill of various kinds
of ailments. These figures are as per government estimate. Several cases
were filed in Bhopal and about 100 cases were filed in the US District
Court, South District of New York, as the head office of the UCC was
in the US.
Since there was a long list of the sufferers and aggrieved ones, Indian
Parliament, invoking the doctrine of parens patriae, passed the Bhopal
Gas Disaster (Processing of Claims) Act, 1985. Sections 3 and 9 of the
Act authorised the Union of India to file cases on behalf of the aggrieved
persons and to claim compensation for them. Therefore, the Union of
India also filed a case to claim compensation on behalf of the Bhopal
Gas Disaster sufferers in the New York District Court on 8 April 1985.”
According to Prof. Upendra Baxi, the filing of a suit in New York raised
many questions as the “litigation is unique for several reasons”. These
reasons are:
1. The mass disaster caused by the UCC is unparalleled in recent his-
tory, so much so that it involves no hyperbole to call it an industrial
Hiroshima.
2. On all available accounts, the catastrophe was a result of several
acts of commission and omission by the UCC... that, catastrophe
was an act in planned mayhem.
3. The catastrophe has generated extraordinary recourse to law both
in India and the US. About 3500 cases were filed in Bhopal and roo
in New York.
4. The sovereign government of... Union of India, acting parens
patriae, has taken upon itself the burden of confronting a giant
multinational for wantonly causing mass disaster in a developing
society.
5. The total damages claimed in the proceedings by the Union of India
and other suits are estimated at a staggering $150 billion ... just
equivalent to the US Government’s budget deficit.
6. The Bhopal litigation has brought to sharp attention several novel
features of inaction between Indian and US legal tradition and cul-
ture, as the question was whether the US legal system was capable
enough to do justice to the victims of mass disaster caused by the
multinational operating from and based in the US.
5. The Union of India’s leadership in aggregating all Bhopal claims
to it and filing proceedings against the UCC in the US has caused

25. See, for more details, Upendra Baxi and Thomas Paul, Mass Disasters and
Multinational Liability—The Bhopal case (Indian Law Institute, New Delhi 1986).
 LAW DHAP.
[CHA
48 ENVIRONMENTAL

the
a lot of ferment within the Indian legal community as most of
best
veteran lawyers were of the opinion that Indian courts were
suited to handle the litigation.
8. It need to be stated that any other course of action by the Union of
India would have meant that the UCC and other multinational cor-
porations were virtually beyond the law, even when they engaged
in industries which create planned catastrophe for masses of the
people in the third world.
But it is significant to mention:
the Union of India raised the notion of absolute liability of multinationals to
clearly further not just the cause of Bhopal victims but also all the emergent
values of international justice concretised through instruments of human
rights... .
The Union of India pleaded:
[A] multinational corporation has a primary, absolute and non-delegable
duty to the persons and country in which it has in any manner caused to be
undertaken any hazardous or inherently dangerous activity. This includes a
duty to provide that all ultra hazardous or inherently dangerous activities be
conducted with the highest standards of safety and to provide all necessary
information and warnings regarding the activity involved.*°
John F. Keenan J of the South District of New York heard both the sides.
The UCC raised the plea of forum non conveniens’’ as the catastrophe
occurred in Bhopal, not in the US and the plant, personnel, victims, wit-
nesses, documentary and related evidence were located in Bhopal which
would aggravate the work of court. Further the court would be required
to understand the foreign law to do justice fairly. An alternate Indian
forum was effective and sufficient to decide such case.
The judgment was pronounced by the court on 12 May 1986 by
Keenan J dismissing the suit filed by the Union of India suggesting that
Indian courts were capable enough to deal with such cases; therefore, it
must be filed in India. The court dismissed the case subject to the fol-
lowing conditions: 1) the defendant UCC would consent to submit to the
jurisdiction of Indian courts and continue to waive defences based upon
the statute of limitation; 2) the defendant UCC would agree to satisfy
any judgment rendered by an Indian court ...; and 3) the defendant UCC
would be subject to recovery under the model of the US Federal Rules of

26. See, paras. 44 through 50 of the complaint filed in the US District Court, New
York. The jurisdiction of the court was invoked in Union of India v. Union Carbide
Corpon., 28 USCS 1332.
27. Gulf Oil Corpn. v. Gilber, 91 L Ed 1055: 330 US sor (1947). It means when a plaintiff
has a choice of courts, the plaintiff is “sometimes under a temptation to resort to a
strategy of forcing the trial at a most inconvenient place for an adversary, even at
some inconvenience” to the plaintiff or justice blended with some harassment.
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 49

Civil Procedure after appropriate demand by the complainants. It related

to pre-trial discovery of facts.
Then, the Union of India*filed the case before the District and Sessions
Court of Bhopal on 5 September 1986 against the UCC and claimed
= 3900 crores by way of compensation. The court made an interim order
on 17 December 1987 to deposit = 350 crores within a period of two
months. The UCC went in appeal to the Madhya Pradesh High Court
against this interim order. The Madhya Pradesh High Court reduced this
amount of interim order from % 350 crores to ¥ 250 crores. The UCC was
not satisfied with this order and, therefore, went in appeal to the Indian
Supreme Court. The Indian Supreme Court pronounced its judgment on
14 February 1989** and ordered for the deposit of $ 470 million, which
included fine, punitive damage also; and the deposition of this amount
would also bring an end to all other pending cases relating to this disas-
ter. Thus, this disaster pointed out that laws present at the time of hap-
pening were not sufficiently effective to deal with such disaster involving
multinationals. It also led to the passing of the Environment (Protection)
Act, 1986.

1.3.4 “Oleum Gas Leak case”: a case for hazardous substances

The other incident, culminated in an important judgment pronounced by
the Indian Supreme Court enunciating new principle of an absolute and
non-delegable duty to the community’’, is the leakage of oleum gas from
the Shriram Food and Fertiliser Corporation, New Delhi in which one
person died on the spot and several persons were taken ill because of the
leakage of the toxic gas. The incident took place on 4 December 1985.
Just after one year from the Bhopal gas disaster a large number of per-
sons—both amongst the workmen and the public—were affected. This
incident also reminded of the Bhopal gas holocaust. Mr M.C. Mehta
filed a public interest litigation under Articles 21 and 32 and sought to
close and relocate the Shriram Caustic Chlorine and Sulphuric Acid Plant
which was located in a thickly populated area of Delhi. Factories were
closed down immediately as the Inspector of Factories and Assistant
Commissioner (Factories) issued separate orders dated 8 and 24
December 1985. This incident took place only a few months before the
Environment (Protection) Act came into force, thus became a goading
force for having an effective and efficacious law like this Act of 1986.

28. Union Carbide Corpn. v. Union ofIndia, (1989) 3 SCC 38: AIR 1990 SC 273.
29. M.C. Mehta v. Union of India (Shri Ram Foods and Fertiliser Industries), (1986) 2
SCC 176: 1986 SCC (Cri) 122; M.C. Mehta v. Union ofIndia, (1986) 2 SCC 325: AIR
1987 SC 982; M.C. Mehta v. Union ofIndia, (1987) 1 SCC 395: 1987 SCC (L&S) 37:
AIR 1987 SC 1086.
5O ENVIRONMENTAL LAW |CHAP.

There are six reported orders, in M.C. Mehta v. Union of India, of the
Indian Supreme Court?’, out of these six, four orders were pronounced
before the Environment (Protection) Act, 1986 was passed and the date
from which it came into force. Thus, the reported orders are relevant and
important as they shed new light on how highly toxic and hazardous
substances industry should be dealt with and contained and controlled
to minimise hazards to the workers and general public.
Bhagwati CJ showed his deep concern for the safety of the peo-
ple of Delhi from the leakage of the hazardous substance like the one
here—leakage of oleum gas. He was of the opinion that we cannot adopt
the policy to do away with chemical or other hazardous industries as
they also help to improve the quality of life, as in this case this factory
was supplying chlorine to Delhi Water Supply Undertaking which was
used to maintain the wholesomeness of drinking water. Thus, industries,
even if hazardous, have to be set up since they are essential for economic
development and advancement of well-being of the people.
We can only hope to reduce the element of hazard or risk to the community
by taking all necessary steps for locating such industries in a manner which
would pose least risk of danger to the community and maximising safety
requirements in such industries.*!
Thus, the Supreme Court was of the opinion that total ban on the above
industry of public utility would impede development activity.
It was also observed that permanent closure of the factory would
result in the unemployment of 4000 workers of the caustic soda factory
and add to the social problem of poverty. Therefore, the court made
an order to open the factory temporarily subject to 11 conditions and
appointed an expert committee to monitor the working of the industry.
The court also suggested:
a national policy will have to be evolved by the Government for location
of toxic or hazardous industries and a decision will have to be taken n
regard of relocation of such industries with a view to eliminate risk to the
community ... .*2
Some of the conditions formulated by the court were:
1. The Central Pollution Control Board to appoint an inspector to
inspect and to see that pollution standards set under the Water Act
and Air Act be followed.
2. The management of Shriram Foods was directed to constitute
Workers’ Safety Committee.

30. (1986) 2 SCC 325: AIR 1987 SC 982; M.C. Mehta v. Union
of India, (1986) 2 SCC
325; M.C. Mehta v. Union of India, (1987) 1 SCC 395:
1987 SCC (L&S) 37: AIR
1987 SC 1086.
31. M.C. Mehta v. Union of India, (1986) 2 SCC 176: AIR 1987 SC 965.
32. Ibid.
 U J ‘ae a i)

3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 51

3. Industry to publicise the effects of chlorine and its appropriate

treatment.
4. Industry to instruct and train its workers in plant safety through
audio-visual programme, install loudspeakers to alert neighbours
in the event of leakage of gas.
5. Workers to use safety devices like masks and belts.
6. The management of Shriram to furnish undertaking from the
Chairman of DCM Ltd. that in case of escape of gas resulting in
death or injury to the workmen or people living in the vicinity, they
would be “personally responsible” for payment of compensation
for such death or injury.
The court also directed the Shriram industry to deposit #20 lakhs and
to furnish a bank guarantee for = 15 lakhs for payment of compensation
claims of the victims of oleum gas if there was any escape of chlorine gas
within three years from the date of order resulting in death or injury to
any workman or any person living in the vicinity. The quantum of com-
pensations was determinable by the District Judge, Delhi. It shows that
the court made the industry “absolutely liable” and compensation to be
paid as and when the injury was proved without requiring the industry
to present its case.
The abovementioned conditions were formulated to ensure continu-
ous compliance with the safety standards and procedure laid down by
the committees (Manmohan Singh Committee and Nilay Choudhary
Committee) so that the possibility of hazard or risk to the workmen
could be reduced to nil. This all indicates that the Supreme Court in its
judgment emphasised that certain quality standards be laid down by the
government and, further, it should also make law on the management
and handling of hazardous substances including the procedure to set
up and to run the industry with minimal risk to human beings, plants,
etc. Further, the industry cannot absolve itself of the responsibility by
showing either that they were not negligent in dealing with the hazard-
ous substance or they took all the necessary and reasonable precautions
while dealing with it. Thus, the court applied the principle of “no-fault
liability” in this case.*
It was also suggested that the Indian Government should set up
“Environmental Courts” on regional basis with one professional judge
and two experts drawn from the ecological research groups, keeping in
view the nature of the case, as the cases involving issues of environmental
pollution, ecological destruction and conflict over natural resources are
on the rise.
33. The principle of “no-fault liability” later on was introduced in the form of absolute
in many cases [M.C. Mehta v. Union of India, (1987) 1 SCC 395: 1987 SCC (L&S)
37: AIR 1987 SC 1086] and later on found its way into the Public Liability Insurance
Act, 1991 and the National Environment Tribunal Act, 1995.
a
us
 52. ENVIRONMENTAL LAW HAP.
[CHA

Thus, judicial pronouncements like the above also became a moving

force to pass competent law to deal with such situations. The Environment
(Protection) Act, 1986 was passed keeping these things in view.

1.4 Other factors contributing to passing of the

Environment Protection Act, 1986
1. There were some piecemeal legislations about the components of
the environment; for example, the Water (Prevention and Control of
Pollution) Act, 1974; the Air (Prevention and Control of Pellution)
Act, 1981; the Forest (Conservation) Act, 1980; the Factories Act,
1948, etc. These statutes have authorities, different and independ-
ent of each other to deal with environmental pollution and activi-
ties causing ecological imbalances. There was lack of coordination
between these authorities leading to their indifferent and callous
attitude.
2. Punishment provisions of the laws dealing with public nuisance
and environmental pollution were very meagre.**
Moreover, the Water (Prevention and Control of Pollution) Act,
1974 and the Air (Prevention and Control of Pollution) Act, 1981
did not have effective provisions to punish and prosecute the err-
ing person or industry. The court can award punishment under
these laws of imprisonment up to a period of two years, or fine, or
both. Such punishment did not make much headway in contain-
ing and controlling the problem of pollution. Thus, there was an
urgent need to have a law which provided stringent punishment.
Thus, it was one of the reasons to pass the new legislation like the
Environment (Protection) Act, 1986.
Till May 1986, no law provided definitions to the basic terms of
the environment; for example, environment, pollution, pollutant,
CEC.
3. There was no law providing the standards for various pollutants
and their allowable limits.
4. Till the passing of the Environment (Protection) Act in 1986, there
was no law which dealt with hazardous substances and provided a
list of polluting substances and chemicals, hazardous wastes, bio-
medical waste and standards of ambient air quality and noise pol-
lution. All this also necessitated the passing of the Act of 1986.
5. The absence of a law relating to protection from export and impo
rt
of microorganisms also showed the shortcoming of the law preva
il-
ing at that time.
34. S. 290 IPC provides a fine of up to = 200 for causing
“Public Nuisance”; and under
S. 278 IPC punishment provided for atmospheric pollution
is a fine which may extend
to = 500.
3] NEED FOR ENVIRONMENTAL LAW: AN INDIAN PERSPECTIVE 93

6. Like other special laws, it was necessary to have a single code or

Act to deal with the environment as such instead of having piece-
meal legislation. Therefore, it was the crying need of the times to
make a cooperative, coordinative and cohesive effort to deal with
the gigantic problem of environmental pollution. Keeping these
objectives in view, the Environment (Protection) Act was passed
in 1986.
 CHAPTER 4
The Indian Constitution and
Environment Protection

The Constitution is known as the “basic law of the land” from which
all other laws derive their sanctity or validity. Therefore, it must be a
living and growing law — means it must be able to cope with the newer
situations and development. That is why, as and when it is felt that a
special situation has arisen and the present constitutional provisions are
not adequate and cannot deal with the new development effectively, they
are amended by Parliament from time to time. The then Prime Minister
of India, Mrs Indira Gandhi, was the first head of State to address the
first International Conference on Human Environment at Stockholm in
1972; she voiced deep concern about the degradation of the environment
and eco-imbalances. She also emphasised that pollution, population
and poverty are inter-related problems and there must be an integrated
approach to deal with them. India was also one of the signatories of the
Stockholm Declaration which is known as the Magna Carta on Human
Environment. Therefore, to fulfil its promise made at the Stockholm
Conference, the Indian Parliament passed the 42nd Amendment to the
Constitution in 1976! and incorporated specially two articles relating to
protection and improvement of the environment. Thus, India became the
first country in the world to have provisions on the environment in the
Constitution.

1. CONSTITUTIONAL AND
INTERNATIONAL OBLIGATIONS
The Indian Constitution, under Part XI, provided for legislative rela-
tions between the Centre and State Governments.’ It provides a scheme
1. The Constitution (42nd Amendment) Act, 1976 received the assent of the President
of India on 16-12-1976.
2. Arts. 245 to 255 deal with legislative relations between the Centre and the States.
56 ENVIRONMENTAL LAW [CHAP.

under which the Centre (both Houses of Parliament and the President
of India) and the States (Legislative Assembly and the Governor of the
States) can make laws on the items provided in the Union List’ and State
List* attached with the Seventh Schedule. Under certain circumstances,
the Central Legislature (Parliament) can also legislate on the items enu-
merated in the State List.’ But Article 253 of the Constitution empowers
Parliament to legislate on any matter for implementing the international
obligations and decisions taken at the international conference, associa-
tion or other body’s meeting. The article provides as under:
253. Legislation for giving effect to international agreements.—
Notwithstanding anything in the foregoing provisions of this Chapter,
Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any international
conference, association or other body.
Thus, to implement the decisions of the Stockholm Conference of 1972,
which was an international conference, was within the competence of
Parliament and accordingly Parliament passed many laws, viz. the Water
(Prevention and Control of Pollution) Act, 1974; the Water (Prevention
and Control of Pollution) Cess Act, 1977 and the Air (Prevention and
Control of Pollution) Act, 1981. The Environment (Protection) Act, 1986
has also been passed to implement decisions arrived at the International
Conference at Stockholm (1972) to preserve natural resources. Thus,
inclusion of Articles 48-A and 51-A(g) relating to environment was a
reassertion of the powers of Parliament provided under Article 253.
Thus, in a way it was an implementation of the international obligation
of the country as per the decisions taken at the Stockholm Conference of
1972. It is to be noted that this power of the Indian Parliament has never
been disputed. Moreover, it is an enabling provision for Parliament to
legislate on the various aspects of environmental laws.
List II (Concurrent List)* of Schedule VII also provides power to the
Indian Parliament on various aspects related to the environment. This
list includes subjects like forests, protection of wildlife, mines and min-
erals’ development, population control and family planning, and minor

3. Union List I consists of 97 items.

4. The State List II consists of 66 items including public health and sanitation,
agricul-
ture, water-supply, irrigation, drainage and fisheries.
5. Under Art. 252, Parliament can legislate if two or more than
two States consent,
and is adopted by legislation by other States and under Art. 250, Parli
ament can also
legislate if proclamation of emergency is in operation.
6. “Concurrent List” consists of 47 items on which Parliament
and State Legislatures
both can make laws. But if both the laws are inconsistent,
the law passed by
Parliament will prevail.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 57

ports and factories. Exercising its powers, Parliament has passed various
laws on these subjects.”

2. CONSTITUTION AND 42ND AMENDMENT OF 1976

Originally the Indian Constitution of 1950 did not have explicit ref-
erence to environment protection, so there was no independent and
separate provision dealing with the protection or improvement of the
environment. But taking note of the Stockholm Conference and grow-
ing awareness for environmental pollution and eco-imbalances, the
Indian Parliament passed a historic amendment — 42nd Constitution
Amendment Act, 1976.° This 42nd Amendment incorporated two sig-
nificant articles — Articles 48-A and 51-A(g) to protect and improve
the environment. Further, it introduced certain changes in the Seventh
Schedule of the Constitution. These changes are as follows:
48-A. Protection and improvement of environment and safeguarding of
forests and wildlife. — The State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.
51-A. 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 wildlife, and to have compassion for living creatures.
Seventh Schedule: List III, Concurrent List:
17-A. — Forests
17-B. — Protection of wild animals and birds
20-A. — Population control and family planning
Thus, various entries of State List I] were transferred to List III
(Concurrent List) which empowered Parliament to legislate on environ-
mental issues such as forests, wildlife, population control, family plan-
ning, etc. It was necessary to make such changes to bring uniformity in
law throughout the country.’

3. ENVIRONMENT JURISPRUDENCE AND

PROTECTION OF NATURAL RESOURCES
The basis, scope and nature of the State responsibility for the protection
of natural resources was discussed by the Supreme Court in Jvtellectuals
Forum v.Stat e The court was required to deal with the question
of A-P.'° CASE PILOT

7. Example, the Wildlife (Protection) Act, 1972; the Factories Act, 1948; the Industries
Act, 1951 and others.
8. It came into force on 7-1-1977.
9. C.M. Jariwala, “The Constitution 42nd Amendment Act and the Environment” in
S.L. Agarwal (Ed.), Legal Control of Environmental Pollution (1980).
10. (2006) 3 SCC 549: AIR 2006 SC 1350.
 (CHAP.
58 ENVIRONMENTAL LAW
between the com-
at the jurisprudential level as it related to the conflict
al development.
peting interests of protecting the environment and soci
The court held:
ironment 1s now a well
The responsibility of the State to protect the env
International Law
accepted notion in all countries. It is this notion that in
n emanating within
gave rise to the principle of State responsibility for pollutio
in the United
one’s own territories. This responsibility is clearly enunciated
(Stockholm
Nations Conference on Human Environment, Stockholm, 1972
Convention) to which India was a party.
Thus, the court declared that there is a responsibility bestowed upon the
government to preserve and protect the natural resources. To explain
and buttress its conclusion the court discussed doctrines of sustainable
development, public trust doctrine, principle of inter-generational equity
and their origin and application. To arrive on this conclusion, the court
referred to “Our Common Future” (Brundtland Report). The court
declared that under public trust doctrine, the State as a trustee is under
the legal duty to protect the natural resources. It is an affirmation of the
duty of the State to protect the people’s common heritage of streams,
lakes, marsh land and tide lands, surrendering the right only in those
rare cases when the abandonment of the right is consistent with the pur-
pose of trust.
In M.C. Mehta v. Union of India'', the Supreme Court affirmed that
environment and ecology are national assets. They are subject to
inter-generational equity. Time has now come to suspend all mining in the
above area on sustainable development principle which is part of Articles 21,
48-A and 51-A(g) of....

4. RIGHT TO LIVE OF ENDANGERED SPECIES

AND OBLIGATION TO SAVE THEM
It has also been clarified that the right to life is also available to species
of animals. The court declared that “we are committed to safeguard this
endangered species because this species has a right to live on this earth,
just like human being”. And that Article 21 of the Indian Constitution
“protects not only the human rights but also casts an obligation on
human beings to protect and preserve a species becoming extinct, con-
servation and protection of environment is an inseparable part of right
to life”.!* Thus, we, as human beings have a pious duty to prevent the spe-
cies who are on the verge of extinction and must implement effectively
11. (2009) 6 SCC 142 case relates to mining in Aravalli hills. The court ordered for com-
plete ban on mining operation in Aravalli range falling in the State of Haryana Dist.,
Faridabad and Gurgaon including Mewat area.
12. Centre for Environmental Law, World Wide Fund-India v. Union ofIndia, (2013) 8
SCC 234, 256; this case was for the protection and saving of Asiatic Lions which has
been declared as endangered species/vulnerable to extinction.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 59

“species protection regime”. Thus the State, as a custodian, is also duty-

bound to maintain and safeguard the benefit of public but for the “best
interest of flora and fauna; wildlife.”

$5. RIGHT TO POLLUTION-FREE AND HEALTHY

ENVIRONMENT: FUNDAMENTAL RIGHT
The environmental laws which have been passed by Parliament and
State Legislatures are based on the recognition of clean environment as a
human right or fundamental right. As it has been recognised that a clean
environment is the basic need for the survival of humanity and it cannot
be ensured without ecological balance, thus, this right belongs to all as
survival of mankind depends on clean, healthful or pollution free envi-
ronment. Any attempt to defile, damage the natural environment would
amount to violation of the human right to a clean environment.'? The
Stockholm Conference of 1972 also declared that “man has the funda-
mental right to freedom of equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being... .”“
Part III dealing with fundamental right [Arts. 12-35] does not have
any direct bearing on environmental degradation or eco-imbalances, and
has not even referred to these words at all. But the judicial pronounce-
ments of the Indian Supreme Court and State High Courts have signifi-
cantly contributed in giving a newer and finer perspective to environment
protection in the form of a fundamental right. The courts, while dealing
with environmental cases, have referred and based their judgments on
the right to equality [Art. 14], right to life [Art. 21], right to freedom
of trade and commerce [Art. 19(1)(g)|. We will study various aspects of
right to healthy, pollution-free environment vis-a-vis fundamental rights
provided under Part III of the Indian Constitution.
The Madras High Court!’ has rightly pointed out that today’s emerging
jurisprudence, environment rights, which encompass a group of collec-
tive rights, are described as “third generation rights”. The first generation
rights are political rights, while the second generation rights are social
and economical. Thus, right to have a noise-free environment is a third
generation right.
The constitutional scheme to protect and preserve the environment
has been provided under Articles 21, 48-A and 51-A(g) which includes
fundamental right to have healthy and pollution free environment, con-
stitutional obligation of the State and fundamental duty of all the citizens

13. See, for details, R.P. Mishra, “Ecological Balance as a Human Right” in
Environmental Law in India (1996) 20-26.
14. Stockholm Declaration, 1972, Principle tr.
15. Shobana Ramasubramanyam v. Chennai Metropolitan Development Authority,
AIR 2002 Mad 125.
 60 ENVIRONMENTAL LAW |CHAP.

of India to protect and improve the natural environment. The Supreme

Court has clarified it in many cases. It has also been observed by the
court that this scheme is based on the “constitutional policy of sustaina-
ble development which must be implemented”.'® The court has observed:
The development of the doctrine of sustainable development indeed is
a welcome feature but while emphasising the need of taking into account
the ecological impact, a delicate balance between it and the necessity for
development must be struck. Whereas it is not possible to ignore intergenera-
tional interest, it is also not possible to ignore the dire need which the society
urgently requires.
What the court should follow is a principle of sustainable development
and find a balance between the developmental needs which the respondents
assert, and the environmental degradation, that the appellant alleges.'”
There it is also necessary to ascertain the object sought to be achieved
by the Act in question and which would affect the environment.'* This
concept has been recognised as fundamental concept of Indian law.
It is also clear that if development works have to be undertaken, it
should be without damaging the forest cover and the environment. “It
must be ensured that the development does not impinge upon the purity
of the environment beyond restricted and permissible limits.”!?
It is also to be noted that Articles 14, 21 and 48-A of the Indian
Constitution must be applied both in relation to an executive action as
also in relation to a legislation. Judicial review of the executive and legis-
lation can be made, may be on different principles. Ecological principles
are relevant consideration in continuing town planning statutes.2°
In Samaj Parivartana Samudaya v. State of Karnataka", the court
declared that “intergenerational equity and sustainable development
have come to be firmly embedded in our constitutional jurisprudence as
an integral part of the fundamental rights conferred by Article 21 of the
Constitution”.

6. RIGHT TO EQUALITY AND ENVIRONMENT

The Indian Constitution guarantees “right to equality” to all persons
without any discrimination. This indicates that any action of the “State”
16. Bombay Dyeing G& Mfg. Co. Ltd. (3) v. Bombay Environmental Action
Group,
(2006) 3 SCC 434: AIR 2006 SC 1489.
17. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549: AIR 2006 SC 1350,
1363.
18. Sushanta Tagore v. Union of India, (2005) 3 SCC 16: AIR 2005 SC 1975.
19. Amarnath Shrine, re, (2013) 3 SCC 247, 276.
20. Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental
Action Group,
(2006) 3 SCC 434: AIR 2006 SC 1489.
21. (2013) 8 SCC 154, 193: AIR 2013 SC 3217.
22. Art. 14: “The State shall not deny to any person equality before
the law and equal
protection of laws within the territory of India.” Right to equali
ty consists of five
articles, viz. Arts. 14, 15, 16, 17 and 18.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 61

relating to environment must not infringe upon the right to equality as

enshrined in Article 14 of the Constitution.
The Stockholm Declaration, 1972 also recognised this principle of
equality in environmental management” and it called up all the world’s
nations to abide by this principle.
The Indian courts, on various occasions, have struck down the arbi-
trary official sanction in environmental matters on the basis that it was
violative of Article 14 (right to equality).7* Because sometimes arbitrary
grant of lease and indiscriminate operation of mines may jeopardise the
wildlife and natural wealth of the nation, it has also been made very
clear that where arbitrariness and perversion are writ large, the court has
no option but to issue a writ to advance public interest and avoid public
mischief which are the paramount considerations.”° |
In Kisan Bhagwan Gawali v. State of Maharashtra**, the exclusion of
a particular class of grazers from consideration and inclusion of some
on the ground that the excluded class was indulging in illegal grazing is
violative of Article 14 and invalid. Such a policy decision is against the
right to equality.
The Gujarat High Court declared that imposition of restriction on
the trade and operation of melting gold and silver ornaments by running
furnaces and thus causing nuisance is not unreasonable and violative of
Article 14 of the Constitution.’
It has aptly been observed that “concept of social justice and equality
are complementary to each other and practical contents of right to life”.*

7. FREEDOM OF TRADE AND COMMERCE

AND THE ENVIRONMENT
Most of the pollution is mainly from trade and business — particularly
from industries. It has been found that tanneries, acid factories, tie and
dye factories, distilleries and nowadays the hotel industries are con-
tributing to environmental pollution. Thus, it all relates to fundamen-
tal right to freedom of trade and commerce/business guaranteed under

23. Principle 1, Stockholm Declaration, 1972: “Man has the fundamental right to free-
dom, equality and adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being... ”.
24. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722: 1981 SCC (L&S) 258;
Kinkri Devi v. State of H.P., AIR 1988 HP 4; also see, Sachidanand Pandey v. State
of W.B., (1987) 2 SCC 295: AIR 1987 SC 1109.
25. Chaitanya Kumar v. State of Karnataka, (1986) 2 SCC 594: AIR 1986 SC 825.
26. AIR 1990 Bom 343.
27. D.S. Rana v. Ahmedabad Municipal Corpn., AIR 2000 Guj 45.
28. Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922.
 [CHAP.
62 ENVIRONMENTAL LAW

stries or
Article 19(1)(g) of the Indian Constitution.2? Some of these indu
s vegetation
businesses/trades are carried on in a manner which endanger
again, it has
cover, animals, aquatic life and human health. But, time and
lute
been made clear that this freedom of trade and commerce is not abso
and is subject to certain reasonable restrictions. Therefore, any trade or
business which is offensive to flora or fauna or human beings cannot be
permitted to be carried on in the name of the fundamental right.
If the residential buildings are converted to commercial use, it amounts
to violation of municipal laws, master plan and environmental laws.
Therefore, the Supreme Court ordered for sealing such residential prem-
ises. It was observed that persons do not have right to carry on any trade
profession in flagrant violation of regulatory provisions on massive scale.
This would also result in environmental pollution.”
In M.C. Mehta v. Kamal Nath?', the Supreme Court made it abun-
dantly clear that if a hotel is discharging untreated effluent into the river
Beas, thereby disturbing the aquatic life and causing water pollution, it
cannot be permitted to work. Any disturbance of the basic environment
elements, namely, air, water and soil, which are necessary for “life”,
“would be hazardous to life”. Thus, the court in the exercise of juris-
diction under Article 32 cannot only award damages but can also levy
“fine” — exemplary damages on the erring industry/hotel which will act
as a deterrent for others not to cause pollution.
In Wing Commander Utpal Barbara v. State of Assam**, the court
declared that a total ban on the use of polythene bags by the Magistrate
by issuing an order under Section 144, Criminal Procedure Code, 1973
(CrPC) is violative of freedom of trade and business. The remedy instead
of a ban could have been to take appropriate steps regulating its use and
disposal and to resort to appropriate legislation for it.
The Gujarat High Court in A unicipal
CASE PILOT Corpn.** made it clear that “the petitioners cannot be allowed to reap
profit at the cost of public health. This is the mandate of law”.
Article 19(1)(g) of the Constitution confers right upon every citizen to prac-
tice any profession or to carry on any occupation, trade or business. But this
fundamental right is subject to reasonable restrictions which may be placed
in the interest of the genera! public as provided for in sub-clause of Article 19

29. Art. 19(1):

19. Protection of certain rights regarding freedom of speech, etc. — (1) All the
citizens of India shall have a right —...
(g) to practice any profession, to carry on any occupation, trade and business.
30. M.C. Mehta v. Union of India, (2006) 3SCC 399: AIR 2006 SC 1325.
31. (2000) 6 SCC 213: AIR 2000 SC 1997.
32. AIR 1999 Gau 78.
33. AIR 1988 Guj 57.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 63

itself. No one has a right to carry on business so as to cause nuisance to

society. One cannot carry on the business in a manner by which the business
activity becomes a health hazard to the entire society.
In the abovementioned case the petitioners (about 165), conducting the
business of dyeing and printing works in Rajkot area, were discharging
dirty water from the factory on the public road and in public drains with-
out purifying the same, thereby causing damage to the public health. The
petitioners claimed that they were carrying on the business for the last
20 to 25 years and the industry was providing employment to 20,000 to
30,000 families. Thus, notice to close down would be very harsh as they
would be compelled to close down the factory and would also be viola-
tive of Article 19(1)(g). It was held that the petitioner had no fundamental
right under Article 19(1)(g) to carry on business without complying with
the municipal law and other environmental statutes; for example, the
Water (Prevention and Control of Pollution) Act, 1974.
Recently, the Gujarat High Court, in D.S. Rana vy. Ahmedabad
Municipal Corpn.**, while making a significant judgment pronounced
that “a reasonable restriction may take form of total prohibition of the
trade activity in a particular area on the ground that it is likely to be
injurious to the health of its residents or cause nuisance”. In this case,
the Commissioner of Municipal Corporation, Mumbai granted licence
under Section 376(5), Bombay Provincial Municipal Corporation Act,
1949 subject to restrictions and conditions to operate business of melting
gold, etc. Later on, the Commissioner issued a notice to all businessmen
engaged in melting gold, etc., that their trade operations were causing
nuisance and were hazardous to health and causing environmental pol-
lution. So, either they should close down their furnaces or silver factories
or operate from the industrial area only. If they continued to operate,
their licences were to be cancelled. The petitioners contended that they
were continuously doing so for the last many decades and the licence was
issued long ago. The restriction imposed by the Commissioner, the peti-
tioners stated, was arbitrary and unreasonable as it violated the freedom
of trade and business guaranteed under Article 19(1)(g).
The defendant declared that the restriction imposed by the orders of
the Commissioner were not unreasonable or excessive as they were in
furtherance of the directive principles of state policy [Art. 48-A] of the
Constitution and the Environment (Protection) Act, 1986.
In fact there is no absolute prohibition on the right to carry on the trade or
business but only a reasonable restriction imposed by the Commissioner in
the nature of confining it to an industrial zone, so that it does not become a
health hazard or source of nuisance to the general public.

34. AIR 2000 Guj 45.

 64 ENVIRONMENTAL LAW [CHAP.

In Jackson & Co. v. Union of India*’, the court clarified that if the State
makes it compulsory to provide “acoustic enclosure” with diesel gen-
erator, it is not a restriction on the right to carry on any occupation,
trade and business, but such restriction is with an aim to prevent noise
pollution which is violative of the right to life enshrined in Article 21 of
the Constitution. In this case, the petitioners were manufacturing diesel
generators which were producing noise beyond permissible limits. It was
also held that the State Governments are authorised to make such rules
under Sections 3 and 25, Environment (Protection) Act, 1986.

8. RIGHT TO LIFE AND RIGHT TO

CLEAN, HEALTHY ENVIRONMENT
Article 21 of the Indian Constitution, though it guarantees right to life
and personal liberty**, does not directly confer right to clean, unpolluted
and healthy environment. But the various judicial pronouncements on
various occasions have expanded the right to life and personal liberty
to include this right by recognising various “unarticulated liberties” as
recognised implicitly by Article 21.
In a recently decided case, Hinch Lal Tiwari v. Kamla Devi>’, the
Supreme Court declared that material resources of a community like for-
ests, tanks, ponds, hillocks, mountains, etc., are nature’s bounty. They
maintain a delicate ecological balance. They need to be protected for a
proper and healthy environment which enables people to enjoy a quality
of life which is the essence of the guaranteed right under Article 21 of
the Constitution. The court decided that the pond’s land could not be
allotted for a residential purpose.
In M.C. Mehta v. Kamal Nath**, Saghir Ahmad J explained:
in order to afford protection to ‘life’, in order to protect ‘environment’
and
in order to protect ‘air, water and soil’ from pollution, this court throu
gh its
various judgments has given effect to the rights available, to the
citizens and
other persons alike, under Article 21 of the Constitution.
It was clarified by the Supreme Court that “any disturbance
of the basic
environment elements, namely, air, water and soil, whic
h are necessary
for ‘life’, would be hazardous to ‘life’ within the meaning
of Article 21
of the Constitution”.*® Various provisions of the othe
r environmental
laws, for example, provisions of the Water (Prevent
ion and Control of
35. AIR 2005 Del 334.
36. Art. 21:
21. Protection of life and personal liberty. —No
person shall be deprived of his
life or personal liberty except according to proc
edure established by law.
37. (2001) 6 SCC 496: AIR 2001 SC 3215.
38. (2000) 6 SCC 213: AIR 2000 SC 1997
.
39. Ibid, 219 (SCC): 2000 (AIR).
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 65

Pollution) Act, 1974; or the Air (Prevention and Control of Pollution)

Act, 1981 have also been enforced by the court under Article 21 of the
Constitution. :
The Supreme Court has given a wider interpretation to the fundamen-
tal rights or constitutional guarantees and such guarantees cannot be
“emasculated in their application by a narrow and constricted interpre-
tation”.*° Thus, giving wider interpretation, it can safely be said:
The expression ‘life’ assured in Article 21 of the Constitution does not con-
note mere animal existence of continued drudgery through life. It has a much
wider meaning which includes right to livelihood, better standards of life,
hygienic conditions in workplace and leisure.*!
All this means that the right to life means 1) right to live with human
dignity, and 2) the quality of life as understood in its richness** and full-
ness by the ambit of the Constitution. It also “encompasses within its
fold, some of the finer facets of human civilization which make life worth
living”.
It has also been declared by the Supreme Court that “for the jurispru-
dence developed by this court environment is merely a statutory issue.
Environment is one of the facets of the right to life guaranteed under
Article 21 of the Constitution.”** The court also made it clear that since
environment is a matter directly under the Constitution and “if the court
perceives any project or activity as harmful or injurious to the environ-
ment, it would feel obliged to step in”.
Thus, this includes the right to have a “living environment” congenial
to human existence. Any activity which pollutes the environment and
makes it unhealthy, hazardous to human health or health of flora and
fauna, is violative of right to have “living environment”, implicitly guar-
anteed by Article 21. Similarly, “the slow poisoning by the polluted atmos-
phere caused by environmental pollution and spoilation should also be
regarded as amounting to violation by Article 21 of the Constitution”.
And the fulfilment guaranteed by Article 21 also embraces the protec-
tion and preservation of nature’s gift without which life cannot be fully
enjoyed.

40. M.C. Mehta v. Union of India, (1987) 1 SCC 395, 413: 1987 SCC (L&S) 37: AIR
1987 SC 1086.
41. Consumer Education @ Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922. Also see, Amarnath Shrine, re, (2013) 3 SCC 247.
42. Amarnath Shrine, re, (2013) 3 SCC 247; State of H.P. v. Umed Ram Sharma, (1986)
2 SCC 68: AIR 1986 SC 847.
43. Noida Memorial Complex Near Okhla Bird Sanctuary, re, (2011) 1 SCC 744. In
this case, the writ petitioners claimed that the construction of Park was in violation
of the Forest (Conservation) Act, 1980; the Environment (Protection) Act, 1986. The
project was allowed to be completed with certain conditions.
44. T. Damodar Rao v. Municipal Corpn. of Hyderabad, AIR 1987 AP 171.
 66 ENVIRONMENTAL LAW [CH AP.

The Supreme Court in N.D. Jayal v. Union of India*® gave wider inter-
pretation to right to life. It declared that right to environment is a funda-
mental 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. It was also clear that this right to development
encompasses much more than economic well-being and includes within
its definition the guarantee of fundamental human rights. In this case,
the petitioner urged the court to issue necessary directions to conduct
further safety tests to ensure the safety of the dam at Tehri for hydel
power and look into the rehabilitation aspect of the migrants. It was
made clear by the court that the right to health, clean and healthy envi-
ronment is a fundamental right under Article 21 of the Constitution.
Rural Litigation & Entitlement Kendra v. State of U.P.**, the first
case of its kind in India involving environmental and eco-imbalance
problems, involved the haphazard and dangerous limestone quarrying
practices in the Mussoorie hill range of the Himalayas. Because of unbri-
dled quarrying, vegetation cover and natural falls started disappearing
and resulted in shortage of potable water, damage to the ecology due
to transportation activity creating noise pollution, air pollution, vibra-
tion and spread of debris of mines. The Rural Litigation and Entitlement
Kendra (RLEK) never claimed the violation of right to life guaranteed
under Article 21 of the Constitution, but it can be inferred from the
judgment that the Supreme Court entertained the environmental com-
plaint under Article 32 of the Constitution as involving the violation of
Article 21 — right to life.
In M.C. Mehta v. Union of India*’ (Ganga Pollution case), SinghJ
declared in unequivocal terms that the closure of industries (tanneries)
may bring unemployment and loss of revenue to the State, “but life,
health and ecology have greater importance for the people”.*
The Andhra Pradesh High Court in T. Damodar Rao v. Municipa
l
Corpn. of Hyderabad*® made it clear that “there can be no reason
why
practice of violent extinguishment of life alone should be regar
ded
as violative of Article 21 of the Constitution”. Slow poisonin
g of the
atmosphere should be regarded as amounting to violation
of right to
45. (2004) 9 SCC 362: AIR 2004 SC 867.
46. (1985) 3 SCC 614: AIR 1985 SC 1259. Observed
in T. Damodar Rao v. Municipal
Corpn. of Hyderabad, AIR 1987 AP 171. Also see,
N.D. Jayal v. Union of India,
(2004) 9 SCC 362: AIR 2004 SC 867.
47. (1987) 4 SCC 463: AIR 1988 SC 1037.
48. Ibid, 482 (SCC): 1048 (AIR). In People
United for Better Living in Calcutta v. Stat
of W.B., AIR 1993 Cal 215, the court declared e
that development shall have to be in
closest possible harmony with the environment.
And law courts have a social duty to
solve the problems for the benefit of the society.
49. AIR 1987 AP 171.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 67

life [Art. 21]. In this case the court was faced with the question whether
the LIC or Income Tax Department can use land owned by them in rec-
reational zone within the tity limits of Hyderabad. The court allowed
the petition and observed that “it is the legitimate duty of the courts as
enforcing organs of constitutional objectives to forbid all actions of the
State and the citizens from upsetting the environmental balance”.
The Rajasthan High Court in Suo Motu v. State of Rajasthan*°
explained that “right to life enshrined in Article 21 of the Constitution
takes within its sweep right to life which is worth living”, and it includes
right to food, clothing and shelter and right to decent environment
including right to live in clean city.
In a significant pronouncement, the Supreme Court has declared that
the court could order for the closure of industry under Article 21 if the
court feels that there was no other remedial measure so that the industry
maintains the standards of emission and effluence as prescribed by the
Environment (Protection) Act, 1986; the Water (Prevention and Control
of Pollution) Act, 1974; and the Air (Prevention and Control of Pollution)
Act, 1981 to have safe, clean and healthful environment.°!

9. RIGHT TO SALUBRIOUS AND

DECENT ENVIRONMENT
In M.C. Mehta v. Union of India (Delhi Commercial Establishment
case), three pronouncements were made by the Supreme Court on three
different occasions and it was opined that “none has any right, human
or fundamental, to violate the law with impunity and claim any right to
use a building for a purpose other than authorised”. It was made clear
in unequivocal terms that residents of metropolitan cities have a right to
salubrious and decent urban environment. Blatant and large scale misuse
of residential premises for commercial purposes and unauthorised con-
struction prevailing in Delhi amounted to violation of this fundamental
right, the directive principles of State policy and fundamental duties pro-
vided in Articles 21, 48-A, 51-A(g), respectively.

50. AIR 2005 Raj 82, 83.

51. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575, 600; the court
also quoted with approval M.C. Mehta v. Union of India, (1987) 4 SCC 463: AIR
1988 SC 1037 wherein the court ordered for the closure of large number of tannery
in Kanpur as they were polluting river, Ganges.
52. (2006) 3 SCC 399: AIR 2006 SC 1325. The first pronouncement was made on
16-2-2006. Present judgment was in continuation of judgment dt. 7-5-2004. M.C.
Mehta v. Union of India, (2004) 6 SCC 588. Second was on 24-3-2006 reported in
M.C. Mehta v. Union ofIndia, (2006) 3 SCC 429 and third decision was on 3-4-2006
reported in M.C. Mehta v. Union of India, (2006) 3 SCC 432. The case is still pend-
ing in the court.
 68 ENVIRONMENTAL LAW [CH AP.

In this case, the writ petitioners pleaded that shops, parlour and other
commercial activities were going on in residential houses in large num-
bers throughout Delhi. This commercial use of residential premises was
found to be in flagrant violation of various laws including municipal
laws, master plan and other plans besides environmental laws. This mis-
use or commercial use of premises in residential area caused a lot of
inconvenience and hardship to the residents of the locality and created
an unhealthy environment in the area. Thus, it affected the human or
fundamental rights of the residents. The court held:
those who own properties have an implied responsibility towards the resi-
dents of the locality. The court cannot be a mute spectator when the violation
also affected the environment and healthy living of law-abiders.
Therefore, the court ordered for sealing such residential premises. It was
made clear that none has a right to use a building for a purpose other
than authorised as no one has any right, human or fundamental, to vio-
late the law with impunity.

10. RIGHT TO SHELTER

In Intellectuals Forum v. State of A.P.°, the Supreme Court held that
shelter is one of the basic human needs just next to food and clothing.
Therefore, the government must formulate policy regarding working for
public to promote sustainable development of habitat in the country,
with a view to ensure equitable supply of land, shelter and services at
affordable prices. Such projects must be for the betterment of people. In
this case, the A.P. Housing Board constructed multi-storey houses in the
areas of old tanks which were not in use for a longtime. The plaintiff
pleaded to restore the water tanks. The court approved the project of
housing and declared that such projects requires high degree of judicial
scrutiny.
In G. Sundarrajan v. Union of India, the court explained that right to
shelter includes “adequate living space, safe and decent structure, clean
and decent surroundings, sufficient light, pure air and water, electricity,
sanitation and civil amenities like road, etc. so as to have easy access to
his daily avocation.”%
Above decisions make it amply clear that courts have recognised that
right to life, provided under Article 21, is wide enough to encompass
various aspects of right to clean and unpolluted atmosphere. Some of
the
aspects of environment recognised are as follows:

53. (2006) 3 SCC 549: AIR 2006 SC 1350.

54. G. Sundarrajan v. Union of India, (2013) 6 SCC 620,
718. It referred Chameli Singh
v. State of U.P., (1996) 2 SCC 549: AIR 1996 SC to5r.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 69

11. SOME FINER FACETS OF RIGHT TO LIFE

1. Right to livelihood.— The right to livelihood was recognised by
the Indian Supreme Court in Olga Tellis v. Bombay Municipal
Corpn.> In this case the petitioner, a journalist, and two pavement
dwellers challenged the government’s scheme to deport pavement
dwellers from Bombay city to their place of origin. It was argued
by the petitioner that right to life includes right to livelihood. If
they were evicted from the slums and pavements they would lose
their means of earning as well. Hence, this government action be
declared unconstitutional. The court accepted the argument of the
petitioner and declared:
Deprive a person of his right to livelihood and you shall have deprived
him of his life.... The State may not, by affirmative action, be compel-
lable to provide adequate means of livelihood or work to citizens. But,
any person, who is deprived of his right to livelihood except according
to just and fair procedure established by law, can challenge the depri-
vation as offending the right.*°
It was made clear by the Supreme Court that claim of the pavement
dwellers was not absolute and it must be balanced against the claim
of pedestrians to make use of pavements for passing and repassing.
But some alternative site be provided to the pavement dwellers with
all civic amenities before they are removed or evicted.°’
It has been made clear time and again by the Supreme Court
that the hawkers and squatters have a fundamental right to carry
on business on public streets but reasonable restriction can be put
on it under Article 19(6). The government was directed to pass law
to regulate the hawking and street vending.** It was opined that
the courts while dealing with the question of livelihood and sur-
vival of a large number of families should adopt a “compassionate
approach”. The National Policy on Urban Street Vendors, 2009
has recognised this right and insured that the vending activities do
not lead to overcrowding and unsanitary conditions in the public
spaces and streets.
These are some other judicial pronouncements in which
Article 21 was expressly referred to, but right to livelihood in
the form of right to collect fruits, vegetables, fodder, timber and

55. (1985) 3 SCC 545: AIR 1986 SC 180.

56. Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, 572: AIR 1986 SC 180.
57. See, for more details, Satish Shastri, Pollution and Environmental Law (1990) 80-81.
58. Gainda Ram v. MCD, (2010) 10 SCC 715. The government has declared National
Policy on Urban Street Vendors, 2009 and has prepared a bill on it, named as AThe
Model Street Vendors (Protection of livelihood and Regulation of Street Vending)
Bill, 2009” to regulate this activity.
 [CHAP.
70 ENVIRONMENTAL LAW

animals was recognised by the courts.*’ Such cases also include the
cases of rehabilitation of environmental migrants or tribals/forest
dwellers. > o
2. In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of tLP™,
the Supreme Court declared:
every citizen has a fundamental right to have the enjoyment of quality
of life and living as contemplated by Article 21 of the Constitution.
Anything which endangers or impairs by conduct of anybody, either in
violation or in derogation of laws, the quality of life and living by the
people is entitled to be taken recourse of Article 32 of the Constitution.
The petitioners wrote a letter to the Supreme Court against
Jhunjhunwala Oil Mills, based near Sarnath, alleging that the mill
was causing environmental pollution because of smoke and efflu-
ents. The owners were not complying with the statutory provisions
of the Air (Prevention and Control of Pollution) Act, 1981 and
Water (Prevention and Control of Pollution) Act, 1974. The court
dismissed the petition as it was devoid of any merit or principle of
public interest, as it was a result of ugly rivalry.
3. Right of enjoyment of pollution-free water and air for full enjoy-
ment of life is a part of right to life guaranteed under Article 21 of
the Constitution.
4. Right to life means something much more than just physical sur-
vival.— includes right to live with human dignity, viz. the bare
necessities of life such as adequate nutrition, clothing, shelter, facil-
ities of reading,...freely moving about and mixing, co-mingling
with fellow human beings.®
5. Compulsory exposure of unwilling persons to dangerous and dis-
astrous levels of noise, amounts to clear infringement of their con-
stitutional guarantee of right to life under Article 21. Right to life
comprehends right to a safe environment, including safe air qual-
ity, safe from noise.
6. Right to sweet water/potable water.— In F.K. Hussain v. Union of
India®, the Kerala High Court declared that one of the attributes of
59. See, Banwasi Seva Ashram v. State of U.P., (1987) 3 SCC 304; Banwasi Seva Ashram
v. State of U.P., (1992) 1 SCC 117; Banwasi Seva Ashram v. State of U.P., (1992) 2
SRAa 2
60. Gramin Sewa Sansthan v. State of M.P., 1986 Supp SCC 578.
61. (1990) 4 SCC 449: AIR 1990 SC 2060.
62. Subhash Kumar v. State of Bihar, (1991) 1 SCC 598: AIR 1991 SC 420.
63. K.C. Malhotra v. State of M.P., AIR 1994 MP 48; J.N. Chaturvedi v. District
Magistrate, Allahabad, AIR 2001 All 148.
64. P.A. Jacob v. Supt. of Police, AIR 1993 Ker 1; also see, Bijayananda Patra v. District
Magistrate, Cuttack, AIR 2000 Ori 70; Maulana Mufti Sayed Mohammad Noorur
Rehman Barkati v. State of W.B., AIR 1999 Cal 15; V. Lakshmipathy v. State of
Karnataka, AIR 1992 Kar 57.
65. AIR 1990 Ker 321.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 71

right to life is right to potable water as it is one of the basic elements

which sustains life itself.
In this case, the petitioner pleaded that the administration was
disturbing the water equilibrium by digging more wells, and this
digging of wells would lead to salinity in Andaman and Nicobar
Islands. The court declared that administrative agencies could not
be permitted to function in such a way to make inroads into fun-
damental rights under Article 21. Digging of more wells and to
increase their depth would disturb the sweetness of water. Thus,
a proper scheme must be evolved and “safeguard must be evolved
to stop withdrawal of groundwater at a cut-off level”. Writ was
decided accordingly.
Right to health, strength and hygienic working conditions is an
integral facet of meaningful right to life.°* It all includes medical
care, both during and after service, to the workman.
. Maintenance of health, of sanitation and preservation of environ-
ment fall within the purview of Article 21 of the Constitution “as
it adversely affects the life of the citizen and amounts to slow poi-
soning and reducing the life of the citizens because of the hazards
created”.°’
. Improper and unplanned exploitation of the natural resources in
the name of socio-economic development is the violation of right
to life under Article 21.°
Io. The Supreme Court in Murli S. Deora vy. Union ofIndia® held that
smoking in any form in public places is a health hazard and viola- CASE PILOT

tive of right to life under Article 21. It has been made clear by the
Supreme Court that smoking in public places indirectly deprives a
non-smoker of his life without any process of law. Thus, it amounts
to violation of Article 21 which provides that none shall be deprived
of life without due process of law.
Et. Right to sleep peacefully, right to leisure, and have a clean environ-
ment is a part of right to life under Article 21 read with Article 19.”
ED Insecticides and medicines which are health hazards and endanger
life are a type of pollution and violative of right to life.”!

66. Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922.
67. L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2; also see, M.C. Mehta v. State of
Orissa, AIR 1992 Ori 225.
68. Kinkri Devi v. State of H.P., AIR 1988,HP 4.
69. (2001) 8 SCC 765: AIR 2002 SC 40; K. Ramakrishnan v. State of Kerala, AIR 1999
Ker 385; also see, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608: 1981
SCC (Cri) 212; Sankar Banerjee v. Durgapur Projects Ltd., AIR 1988 Cal 136.
7(). Burrabazar Fire Works Dealers Assn. v. Commer. of Police, AIR 1998 Cal 121.
71. Ashok v. Union ofIndia, (1997) 5 SCC to: AIR 1997 SC 2298. This case related to
S. 27, Insecticides Act, 1968.
 LAW HAP.
[CHA
72 ENVIRONMENTAL

13. The right to information and community participation for protec-

tion of environment and human health also flows from Article 21.
Therefore, the government and authorities have a duty to motivate
the public participation.” The Basel Convention also provides for
this right to information and public participation. 13 |
14. The court has declared that the inter-generational equity 1s an inte-
gral part of Article 21 of the Constitution.” It also includes tradi-
tional and cultural heritage of the persons.
In a recently decided case, M.C. Mehta v. Union of India” (Delhi
Vehicular Air Pollution case), the Supreme Court made it clear that
Article 2x overrides provisions of every statute including the Motor
Vehicles Act, 1988. If the statutes militate against constitutional man-
date of Article 21, they shall be struck down. Norms fixed under the
Motor Vehicles Act, 1988 are in addition to and not in derogation of the
requirements of the Environment (Protection) Act, 1986. In this case, the
court refused to extend the deadline fixed to convert the buses to CNG
fuel as it would amount to permitting premium on the lapse and inaction
of the administration.

11.1 Endangered species have a right to life

The Supreme Court, adopting ecocentric approach, has declared that
endangered species have “a right to live on this earth, just like human
beings.” The court further explained that Article 21 of the Constitution
also “cast an obligation on human beings to protect and preserve a spe-
cies becoming extinct...”. And preservation of animals is an inseparable
part of right to life.

12. RIGHT TO CONSTITUTIONAL

REMEDIES AND ENVIRONMENT
A survey of the cases related to environment pollution and eco-imbalances
reveals that most of the cases were filed under Articles 32 and 226 of the
Constitution ofIndia. Article 32 is one of the fundamental rights — known
as “right to constitutional remedies” for the enforcement of the funda-
mental rights. This constitutional duty of protection of fundamental
rights has been cast on the Supreme Court of India under Article 32
and on the State High Courts under Article 226 of the Constitution.

72. Research Foundation for Science v. Union of India, (2005) 10 SCC 510.
73. Amarnath Shrine, re, (2013) 3 SCC 247.
74. (2001) 3 SCC 756: AIR 2001 SC 1948.
75. Centre for Environmental Law, World Wide Fund-India v. Union of India,
(2013) 8
SCC 234, 257.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 73

The courts while granting relief to the aggrieved and checking activities
injurious to environment have issued orders, directions and writs from
time to time. Under public interest litigation (PIL), courts possess wide
powers to grant relief and prevent any activity endangering humans and
damaging the environment. A PIL can be brought by any public-spirited
person, who may not be an aggrieved person, for a common cause or
against any activity or conduct which adversely affects the public at large
or group of persons.” Even a voluntary organisation can initiate PIL.”’
Article 32 is a fundamental right and the Supreme Court of India enter-
tains a writ petition for the enforcement of fundamental rights. Since the
denial of the right to clean, healthful and unpolluted environment and
its various attributes have been recognised by the Supreme Court as vio-
lative of right to equality [Art. 14], right to freedom [Art. 19(z)] and
right to life [Art. 21], the Supreme Court has issued orders, directions
and writs of mandamus, certiorari, etc., from time to time. Similarly, the
High Courts of the States are also empowered to issue orders, directions
and writs under Article 226 for the enforcement of fundamental rights.
While dealing with PIL, the Supreme Court, on many occasions, did
not follow the technical procedural formalities because the problems
were of vital importance.’* It has also been observed by the court that
extraordinary situation — like large scale damage to forest due to illegal
mining, demands extraordinary remedy as provided under Article 32 of
the Constitution instead ofsac Ro to other pacanny eatin 7

Supreme Court of India soteptedt:avietier written to the court as a WR CASE PILOT

petition. This case was pronounced by the court as the “first case of its
kind in the country involving issues relating to environment and eco-
logical balance... .” The letter was written by RLEK, Dehradun —a
voluntary organisation. The “epistolary jurisdiction” has been invoked
by the courts in other cases also*', as the matters involved were of vital
importance.

76. See, for detailed discussion, $. Shastri, Pollution and the Environmental Law (Rupa
Publishers, Jaipur 1990) 17-33. M.C. Mehta v. Union of India, (1988) 1 SCC 471:
1988 SCC (Cri) 141; Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545:
AIR 1986 SC 180.
77. Consumer Education @ Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922; Bombay Environmental Action Group v. Pune
Cantonment Board, A.S. Writ Petition 2733 of 1986, decided on 7-10-1986 (Bom);
Banwasi Seva Ashram v. State of U.P., (1986) 4 SCC 753: AIR 1987 SC 374.
78. Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295: AIR 1987 SC 1109.
79. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154: AIR 2013
SC-32 17:
80. (1985) 2 SCC 431: AIR 1985 SC 652.
81. Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449:
AIR 1990 SC 2060.
 74. ENVIRONMENTAL LAW HAP.
[CH

The power of the Supreme Court under Article 32 of the Constitution

is “injunctive” as well as remedial in nature to grant relief and it extends
to wide range of situations to effectuate the fundamental rights under
Article 21 and prevent environmental degradation. The court has to
evolve the mechanism to provide relief keeping in view the facts of the
case. Therefore, the remedies differ from facts to facts and case to case.
Such power cannot be defined, enlisted or generalised.**
The Supreme Court has also made it clear that if a matter can be
raised at appropriate level (High Court), the court will not decide the
constitutionality of the Government Notification. It will be sent back to
the respective High Court.* Thus, alternative remedy must be exhausted
before raising the matter before the Supreme Court.
The main purpose of invoking PIL is to compel public bodies and the
State to carry out the statutory or constitutional obligation for which
precisely they are meant or which they are bound to fulfil or where there
is denial or violation of human rights or persons cry in misery. “It is
procedural rules which infuse life into substantive rights, which acti-
vate them to make them effective.” Some of the cases became pathfind-
ers in the field of people’s involvement in the justicing process, in other
words, in participatory justice which ultimately serves the purpose of
achieving “social justice”. Social justice is due to the people, therefore,
Krishna lyerJobserved, “the people must be able to trigger off the juris-
diction vested for their benefit in any public functionary like Magistrate
under Section 133 CrPC”.*4 In Mun han*>,
CASE PILOT Shri Vardichan filed a case for removing unhygienic conditions amount-
ing to public nuisance, as Article 47 makes it a paramount principle of
governance that steps are taken for the improvement of public health as
amongst its primary duties. The right of the petitioner was challenged.
The court observed:
Why drive common people to public interest action? Where Directive
Principles have found statutory expression in Do’s and Dont’s, the Court will
not sit idle and allow municipal government to become statutory mockery.
The law will relentlessly be enforced and the plea of poor finances will be
poor alibi when people in misery cry for justice. The dynamics of the judicial
process has a new ‘enforcement’ dimension .... The officer in charge and
even the elected representatives will have to face the penalty of law if what

82. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154,

187: AIR
201319 3277!
83. T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC
246; the case
involved the constitutional validity of the Government Notification
dt. 25-6-
2009 declaring Mount-Abu (Rajasthan) as an eco-sensitive zone. Also see, T.N.
Godavarman Thirumulpad v. Union of India, (2012) 12 SCC
297.
84. Hogs Council, Ratlam v. Vardhichan, (1980) 4 SCC 162: 1980
SCC (Cri) 933
85. Ibid.
=
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 75

the Constitution and follow-up legislation direct them to do are defied or

denied wrongfully.
Some seminal questions concerning various articles of the Constitution
and the principles and norms for determining the liability of large enter-
prises engaged in manufacture and sale of hazardous products, basis on
which damage be quantified and whether such industries be allowed to
work in thickly populated areas of city were dealt with by the Supreme
Court of India in M.C. Mehta v. Union of India** (Shriram Food and
Fertiliser case of Delhi), which have become a guiding force today. The CASE PILOT
Supreme Court in this case suggested setting up of “Environmental
Courts” on regional basis for the first time. Moreover, the court also
awarded # 10,000 to the petitioner for his valiant battle against a giant
industry — Shriram Food and Fertiliser Corporation — as a token of
appreciation.
The court made a significant pronouncement in this case that enter-
prises engaged in hazardous or inherently dangerous activity owe an
absolute and non-delegable duty to the community and must be abso-
lutely liable to compensate for the harm caused by such activity. The
basis of this liability is that it is part of “social cost” for carrying on
hazardous and inherently dangerous activity.
The Supreme Court, in another PIL, M.C. Mehta v. Union of India’*’,
recognised that keeping the citizens informed is a social obligation of the
government, particularly about the environment free of cost and ordered
that environmental education be introduced compulsorily at all levels
of education; and there should be mass awareness and education pro-
grammes through mass media like radio and TV. Such orders were issued
under Article 32 of the Constitution to the Union of India.
In M.C. Mehta v. Union of India** (Taj Trapezium case), the Supreme
Court evolved a new principle of labour environmental jurisprudence
for the protection of an ancient monument — Taj Mahal. While ordering
for the closure and relocation of listed coal/diesel-using industries, the
rights and benefits of the workers involved in the industry were spelled
out in the judgment. The court ordered for shifting bonus to employees
who agreed to shift with the industry and additional compensation of six
years wages to employees of the industries that opted to close. All this
was awarded in addition to amount payable and compensation as per
Section 25-F(b), Industrial Disputes Act, 1947. The court also suggested
“single-window” facility to industries in this case.
Delay and laches on the part of the writ petitioner may defeat the PIL.
Though delay may not be the sole ground for dismissing a PIL, but it

86. (1986) 2 SCC 325: AIR 1987 SC 982.

87. (1992) 1 SCC 358: AIR 1992 SC 382.
88. (1997) 2 SCC 353: AIR 1997 SC 734.
 ENVIRONMENTAL LAW [CHAP.
bs 2
76

must be considered having regard to the facts and circumstances of each

case. In Narmada Bachao Andolan vy. Union of India®, the Supreme
Court observed:
just because a petition is termed as a PIL does not mean that ordinary princi-
ples applicable to litigation will not apply. Laches is one of them.
We cannot disturb a third party interest created on account of delay. Even
otherwise also why should the Court come to the rescue of a person who is
not vigilant in his right.”°
One of the most significant developments of PIL is that it has helped
courts to develop new and important principles to cope with the men-
acing problem of environmental pollution/degradation. Such important
developments are the introduction of “precautionary principle” and
“polluter pays principle” in various cases.”!
In T.N. Godavarman Thirumalpad v. Union of India®*, the Supreme
Court has declared that there are two salutary principles which gov-
ern the law of environment: 1) the principle of sustainable development,
and 2) the precautionary principle. And that sustainable development is
essentially a policy and strategy for continued economic and social devel-
opment without detriment to the environment and natural resources
on the quality of which continued activity and further development
depend .... We owe a duty to future generation and for a bright today,
bleak tomorrow cannot be countenanced. This case was relating to issu-
ance of permit to continue mining operation in Kudremukh National
Park in Karnataka.

12.1 “Godavarman” revisited

Y.K. Sabharwal J, the then Chief Justice of India, delineated the contours
of PIL again in T.N. Godavarman Thirumulpad (98) v. Union of India’.
It was declared:
howsoever genuine a case brought before a court by a PIL be, the court has to
decline its examination at the behest of a person who, in fact, is not a public
interest litigant and whose bona fides and credentials are in doubt.

89. (2000) 10 SCC 664: AIR 2000 SC 3751.

90. Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action
Group,
(2006) 3 SCC 434: AIR 2006 SC 1489; also see, R@M Trust v. Koramangala
Residents Vigilance Group, (2005) 3 SCC 91: AIR 2005 SC 894.
91. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC
212: AIR
1996 SC 1446; Vellore Citizens’ Welfare Forum v. Union of India, (1996)
5 SCC 647:
AIR 1996 SC 2715; M.C. Mehta v. Union of India, (1997) 2 SCC 353:
AIR 1997 SC
734; A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999)
2 SCC 718: AIR
1999 SC 812; M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213:
AIR 2000 SC 1997.
92.(2002) 10 SCC 606, 613: AIR 2003 SC 724. Also see,
Research Foundation for
Science v. Union of India, (2005) 10 SCC 510.
93. (2006) 5 SCC 28: AIR 2006 SC 1774.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION ay

But the court can still examine the issue if it is of serious nature of
public cause and looking to grave public injury by appointment of
amicus curiae. In the given-case, the court examined the background
of the petitioner and concluded that he was not really a public interest
litigant and abused the process of law. He deserved to be sternly dealt
with as he wasted the precious time of the court resulting in incurring
heavy expenses by the Central Empowered Committee (CEC). Therefore,
the court fined = 1,00,000 which was to be paid to the CEC and could
be utilised for preservation of forests in the State of Chhattisgarh by
the CEC.
In N.D. Jayal v. Union ofIndia®*, the Supreme Court has declared that
“the adherence to sustainable development principle is a sine qua non for
the maintenance of the symbiotic balance between the rights to environ-
ment and development”. This concept is “an integral part of right to ‘life’
under Article 21”.
It has also made clear that the abovementioned two principles have
become “part of the environmental law of the land”.*° KuldeepJ in Vellore
Citizens’ Welfare Forum v. Union of India” explained the “precautionary
principle” as follows:
The ‘Precautionary Principle’ in the context of municipal law means:
(i) Environmental measures — by the State Government and statutory
authorities — must anticipate, prevent and attack the cause of environ-
mental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of sci-
entific certainty should not be used as a reason for postponing meas-
ures to prevent environmental degradation.
(iii) The ‘onus of proof’ is on the actor or the developer/industrialist to
show that his action is environmentally benign.
The Supreme Court also directed the Tamil Nadu High Court to con-
stitute a Special Bench, the “Green Bench” to deal with cases involving
environmental matters.
In M.C. Mehta v. Union of India’’, the court clarified:
mining within the principle of sustainable development comes within the
concept of ‘balancing’ whereas mining beyond the principle of sustainable
development comes within the concept of ‘banning’. It is a matter of degree.
Balancing of the mining activity with environment protection and banning
such activity are two sides of the same principle of sustainable development.
They are parts of precautionary principle.

94. (2004) 9 SCC 362: AIR 2004 SC 867.

95. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353: AIR 1997 SC 734 (Taj Trapezium
case); A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
96. (1996) 5 SCC 647: AIR 1996 SC 2715.
97. (2009) 6 SCC 142.
 78 ENVIRONMENTAL LAW [CHAP.

13. GENESIS OF PRECAUTIONARY PRINCIPLE

Basically, precautionary principle is a rule of evidence and particularly
it deals with the burden of proof in environmental cases. This principle
shifts the burden on the polluter— individual/industrialist/entrepre-
neur —to prove that his activity/industry/process/operation ys not a
health hazard, damaging the environment and his action is “environ-
mentally benign”. me .
Earlier the concept of “assimilative capacity” was prevailing which
was provided by Principle 6 of the Stockholm Declaration of 1972 (UN
Conference on Human Environment).”® This principle of assimilative
capacity assumed that science could provide policy-makers with the
information and means necessary to avoid encroaching upon the capac-
ity of the environment to assimilate impacts and it is presumed that rel-
evant technical expertise would be available when environmental harm
was predicted and there would be sufficient time to act in order to avoid
such harm.
Later on the “precautionary principle” approach was emphasised and
the 11th Principle of the UN General Assembly Resolution on World
Charter for Nature, 1982 emphasised for “precautionary principle”
in place of assimilative capacity principle.*? And ultimately, the Earth
Summit — Rio de Janeiro Conference of 1992 declared it in unequiv-
ocal terms. Principle 15 of the Rio Declaration on Environment and
Development, 1992 provided:
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.
98. Principle 6:
The discharge of toxic substances or of other substances and the release of heat, in
such quantities or concentrations as to exceed the capacity of the environment to
render them harmless, must be halted in order to ensure that serious or irreversi-
ble damage is not inflicted upon ecosystem.
99. World Charter for Nature, 1982, Principle 11:
Activities which might have an impact on nature shall be controlled, and the best
available technologies that minimise significant risks to nature or other adverse
effects shall be used; in particular:
(a) Activities which are likely to cause irreversible damage to nature
shall be
avoided.
(b Activities which are likely to pose a significant risk to nature shall
~—
be preceded
by an exhaustive examination, their proponents shall
demonstrate that
expected benefits outweigh potential damage to nature.
Gy Activities which may disturb nature shall be preceded by assessment of their
consequences, and environmental impact studies of development
projects shall
be conducted sufficiently in advance, and if they are
to be undertaken, such
activities shall be planned and carried out so to mini
mise potential adverse
effects.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 79

Later on, it was adopted by others.!

The basis for the emergence of the principle is the non-availability of
full information about the widespread ramifications, serious and irre-
versible harm which may be caused, based on scientific experiments.
This is known as “inadequacies of science”.* It was based on the theory
that it is better to err on the side of caution and prevent environmental
harm which may indeed become irreversible*; and it was also based on
scientific uncertainty and inadequacies of science.
The Indian Supreme Court has also adopted the precautionary prin-
ciple but in a modified form. The principle has been followed in many
cases and the court has declared it “as essence of Article 21 of the
Constitution of India.”* The court, adopting the principle, explained that
this principle has led to the special principle of burden of proof in envi-
ronmental cases where burden as to the absence of injurious effect of the
actions proposed is placed on those who want to change the status quo.
The person who wants to maintain status quo by maintaining a less pol-
luted state should not carry the burden of proof and the party who wants
to alter it by carrying on some activity must bear this burden.°
In case insufficient proof is presented, the presumption of the court
will operate in favour of environmental protection and the activity would
not be allowed to operate or continue to operate.
In the light of the above discussion and the problems present day
courts are facing, the Supreme Court has suggested to fortify the “appel-
late authority” under the Water (Prevention and Control of Pollution)
Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; the
Hazardous Wastes (Management and Handling) Rules, 1989; and the
National Environment Tribunal Act, 1995 by appointing technical mem-
bers well versed in environmental laws and having special knowledge in
scientific and technical fields about environmental science/management.°®
This will provide the courts with expert opinion for “fair adjudication of
disputes relating to environment and pollution”.
In Amarnath Shrine, re’, the Supreme Court has explained that the
doctrine of sustainable development and precautionary principle have

1. UNEP Governing Council adopted it in 1989, and see, Bomak Convention of 1991.
. Charian Barto in Vol. 22, Harv Entt L Rev (1988) 509, 547.
wd . Per M. Jagannadha RaoJ in A.P. Pollution Control Board v. Prof. M.V. Nayudu,
(1999) 2 SCC 718: AIR 1999 SC 812.
4. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154: AIR 2013 SC
3217; also see, M.C. Mehta v. Union ofIndia, (2009) 6 SCC 142.
5. See, C.M. Jariwala, “Complex Enviro-Techno Science Issues: Judicial Direction”
(January—March 2000) 42 JILI 29.
6. A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718: AIR 1999
SC Sx2z..
7. (2013) 3 SCC 247; in this, the court took suo motu cognizance of the matter, when
papers reported about the mismanagement and reported death of many pilgrims.
 80 ENVIRONMENTAL LAW [CHAP.

been applied where development was necessary, but not at the cost of
environment. “Appropriate balance between the various activities of the
State is the very foundation of the socio-economic security and proper
enjoyment of the right to life.” And this balance is to be made by the
courts to ensure the protection of environment and forests.

14. POLLUTER PAYS PRINCIPLE

The Supreme Court has also, in a recently decided case, held that this
principle envisages “precautionary protection against environmental
hazards by avoiding or reducing environmental risk before specific harm
is expected”. Thus it has become a part of the principle of sustainable
development.®
In Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law
Society of India’, the court held that while applying the precautionary
principle in a given situation, the “public interest” must be kept in view.
Moreover, “we have to live with certain risks, which are counterbal-
anced by services and amenities provided by these entities”. Many fac-
tories, plants and utilities are vulnerable to certain risks but they cannot
be decommissioned or dismantled. We have to live with them if they are
serving public interest and do not pose grave threat to environment. In
this case the appellant, a fertiliser company, was having ammonia stor-
age tank. The petitioners contended that in the event of earthquake, ter-
rorist attack, sabotage or air crash into the tank, there would be human
tragedy on account of leakage of ammonia from the storage tank. On
the question whether it should be relocated, the court discussed the pre-
cautionary principle and held that the risk to environment or to human
health must be decided in public interest according to “reasonable person
test”.
E 3

CASE PILOT “polluter pays principle” was explained as under:

[O]nce the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to
any other person by his activity irrespective of the fact whether he took rea-
sonable care while carrying on his activity.
(a) The polluting industry is absolutely liable to compensate for harm
caused to the environment.
(b) He is also liable to pay the cost of restoring the environmental degrada-
tion — reversing the damaged ecology.

8. Research Foundation for Science (18) v. Union of India,

(2005) 13 SCC 186; also
see, Tirupur Dyeing Factory Owners Assn. vy. Noyyal River
Ayacutdars Protection
Assn., (2009) 9 SCC 737.
9. (2004) 4 SCC 420: AIR 2004 SC 2.663.
10. (1996) 3 SCC 212: AIR 1996 SC 1446.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 81

This principle means the “absolute liability” for harm to the environ-
ment. Thus, it became a principle of remediation of the damaged envi-
ronment — a part of the proeess of “sustainable development”.'!
Now it is well settled that this principle has become a part of envi-
ronmental jurisprudence. But a study of the decision pronounced by the
Supreme Court reveals that there still exists doubt with regard to its con-
tents and scope. The Supreme Court in Deepak Nitrate Ltd. v. State of
Gujarat’? got an occasion to explain the principle and its finer contours.
The court declared that the compensation to be awarded must have
some broad correlation not only with the magnitude of the risk and the
capacity of the enterprise, but with harm caused by it. The polluter pays
principle can be applied only where it is proved that some damage has
been caused to the man and material or to the environment by the indus-
trial unit by their activity. Mere violation of the legal provisions laying
down the standards does not attract this principle. In this case, a PIL
was filed alleging that large scale pollution has been caused by the indus-
tries located in Gujarat Development Corporation Estate of Nandesari
as the effluents discharged by the industries exceeded the parameters
fixed by the Gujarat Pollution Board. The High Court passed an order
directing industries to pay one per cent of the maximum turnover of last
three years by applying the polluter pays principle, without ascertaining
whether the industries were causing degradation of environment or any
of the component of environment.
The Supreme Court in Sterlite Industries (India) Ltd. v. Union of
India (Sterlite) imposed a fine of = 100 crores on the industry for work-
ing without proper consent order for a long time and for causing air,
water and soil pollution. The court reiterated the principle of “absolute
liability” and that the fine or compensation by way of damages “must
have a deterrent effect.” It was also observed that the amount should be
deposited in a bank for a period of five years and the interest of the fixed
deposit must be used/spent for improving the environment of the area.
The court also clarified that this award of damages of = 100 crores “will
not stand in the way of any claim for damages ... in a civil court or any
other forum in accordance with law”.
Similarly the Supreme Court has also applied the principles of “polluter
pays principle” and “precautionary principle” in Research Foundation
for Science v. Union of India". The basic question involved in this case
was permission of Union of India to import toxic waste from industrial-
ised countries. On detection of various containers having toxic waste, the

11. See, for details, Satish Shastri, “‘The Polluter Pays Principle’ and the Supreme Court
of India” (2000) 42 JILI 108.
12. (2004) 6 SCC 402.
13. (2013) 4 SCC 575.
14. (2012) 7 SCC 769: AIR 2012 SC 2627.
 |CHAP.
8> ENVIRONMENTAL LAW y

ration and the cost of incineration

court ordered for the disposal by incine Le.
the containers.
was to be recovered from the owners of
e Cou rt aga in dec lar ed tha t the “po lluter pays principle”
The Suprem
uti ona ry pri nci ple ” hav e to be rea d with the doctrine of
and “preca
court imposed heavy fine
“sustainable development”. In this case the
t the expenses of reversing
for polluting the water of Noyyal river to mee
the ecology."

15. POLLUTION FINE (EXEMPLARY DAMAGES)

l Nath",
In a PIL initiated by Shri M.C. Mehta in M.C. Mebta v. Kama
le 32 are
the Supreme Court declared that powers of the court under Artic
not restricted and it can award damages in a PIL; and in addition to dam-
ages as explained by “polluter pays principle”, “the person held guilty of
causing pollution can be held liable to pay ‘exemplary damages’ so it may
act as deterrent for others not to cause pollution”. In this case M/s Span
Motel was found guilty of interfering with the natural flow of a river, and
thus disturbing the environment and ecology of the area. The court also
proposed to award pollution fine on the industry. The court made it clear
that powers under Article 32 are not restricted and it can award damages
under PIL or a writ petition. In the words of Saghir Ahmed J:
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 pol-
lution has to pay damages (compensation) for restoration of the environment
and ecology. The powers of the Court under Article 32 are not restricted and
it can award damages in a PIL or writ petition as has been held in a series of
decisions. 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.
The abovementioned damages were suggested in addition to the compen-
sation to sufferers of the pollution activity.
Later on, the Supreme Court imposed “exemplary damages” of
¥ 10,00,000 on Span Motel Limited, keeping in view the undertaking
given by them to bear a fair share of the “project cost” of ecological
restoration, which was quite separate and apart from their liability for
exemplary damages. It was also directed by the court that this amount of
% 10,00,000 (special damages) shall be remitted to the State Government
in the Department of Irrigation and Public Health for being utilised only
for flood protection works in the area of river Beas affected by the action

1S. Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection
Assn., (2009) 9 SCC 737.
16. (2000) 6 SCC 213: AIR 2000 SC 1997. Also see, M.C. Mehta (Calcutta Tanneries’
Matter) v. Union of India, (1997) 2 SCC 411.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 83

of Span Motel." It was also made clear that the court has powers under
Article 32 to award “exemplary damages”.

16. POLLUTION COMPENSATION

Such orders of “compensatory payment” were made by the court in
Samaj Parivartana Samudaya v. State of Karnataka’, when it ordered
for the compensatory payment of %5 crores per hectare for the area
under illegal mining and = 1 crore per hectare for the areas under illegal
overburden dumps, roads, offices, etc. The court also declared that it was
the minimum payment each leaseholder was liable to pay. And they were
liable to pay “additional amount” after the determination of final loss
caused by illegal mining and illegal use of the land. This final amount
of compensation was to be computed on the basis of 1) value of the ore
illegally extracted from forest/non-forest land falling outside the sanc-
tioned lease area; 2) profit made from illegal extraction; and 3) resultant
damage caused to the environment and ecology of the area. The court
explained that the power of the court
under Article 32 is both injunctive as well as remedial and power to grant
relief, naturally, extends to a wide range of situations and cannot be put ina
straightjacket formula. The issue is more fundamental, namely, the wisdom
of exercise of powers under Article 32 read with Article 142 to prevent envi-
ronmental degradation and thereby effectuate the fundamental rights under
Article 21.... The Supreme Court should not lie entrapped within the con-
fines of any of the relevant statutes.... The situation being extraordinary the
remedy, indeed, must be extraordinary.”
Against this backdrop, the court proceeded to exercise their constitu-
tional jurisdiction to remedy the enormous wrong done to the environ-
ment and ordered for such a heavy amount of fine/compensation on the
doers of illegal mining.
In this case, the court also ordered for the payment of “guarantee
money” for the implementation of rehabilitation and reclamation plans
for the areas found to be under illegal mining by way of mining pits,
overburden/waste dumps, etc., outside the sanctioned lease. In addition
to above, each shareholder was required to pay a sum equivalent to 15 per
cent of the sale proceeds of iron ore sold through monitoring committee.

17. M.C. Mehta v. Kamal Nath, (2002) 3 SCC 653: AIR 2002 SC 1515.
18. (2013) 8 SCC 222, 225 (decided on 28-9-2012); this case relates to illegal mining
operations in the district of Bellary, Tumkur, and Chitradurga of Andhra Pradesh.
The court also imposed ban on mining activities of the area. The detailed judgment
was pronounced by the court later on reported at Samaj Parivartana Samudaya v.
State of Karnataka, (2013) 8 SCC 154: AIR 2013 SC 3217 (decided on 18-4-2013).
19. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154: AIR 2013 SC
3217, 186-87.
 84 ENVIRONMENTAL LAW |CHAP.

The Supreme Court has also cautioned in several cases that when
there is gross violation of fundamental right of group of persons, or
a class action for basic human rights, or when the complaint is such
which shocks the conscience of the court, the court leaves aside proce-
dural shackles and hears such petitions and extends its jurisdiction under
all available provisions for remedying the hardships and miseries of the
needy. But this does not mean that the doors of this court are always
open for anyone to walk in; therefore, the powers under Article 32 must
be used with restraint.”°
Various High Courts of the State have also exercised their power
under Article 226 and pronounced very significant decisions to protect
and improve the environment. In Rampal v. State of Rajasthan*', the
High Court issued the writ of mandamus against the Municipal Board of
Mandal of Bhilwara district to abide by the provisions of the Rajasthan
Municipalities Act, 1959 and to clean the streets, public places, sew-
ers and remove noxious and offensive matter, and further to construct
drains, sewers, etc.2? The Andhra Pradesh High Court also made a
very significant judgment in T. Damodar Rao v. Municipal Corpn. of
Hyderabad” that “right to life embraces the protection and preservation
of nature’s gift without which the right cannot be enjoyed”. In this case,
a writ petition was filed by some residents and rate payers who lived
around the park. They prayed that development of a part of the recre-
ational park as residential colony amounts to violation of Articles 21
and 48-A of the Constitution. The court issued the writ of mandamus
for raising structures on that land and asked the State Government to
remove them as construction on recreation zone of park amounted to
violation of right to life guaranteed under Article 21 of the Constitution.
In State of H.P. v. Umed Ram Sharma‘, the court held that right to
life includes the quality of life as understood in its richness and fullness
by ambit of the Constitution. Thus, in this case, access to road was held
by the court as access to life.
In Bombay Environmental Action Group vy. Pune Cantonment
Board**, the Bombay High Court reorganised the right to know without
requiring any proof of government irregularity in cases involving envi-
ronmental issues. The group was permitted to inspect the document of
the proposed plan, maps, etc. of permission granted to private builders.

20. Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295: AIR

1987 SC 1109.
21. AIR 1981 Raj 121.
22.In L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2,
the High Court held that
the Municipal Council, under the Municipalities Act, 1959
have a primary duty to
provide adequate sanitation in the city, Jaipur.
23. AIR 1987 AP 171.
24. (1986) 2 SCC 68: AIR 1986 SC 847.
25. A.S. Writ Petition 2733 of 1986, decided on 7-10-
1986 (Bom).
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 85

In the field of noise pollution some important judgments have been

pronounced by the Kolkata”® and Orissa?’ High Courts. In Bijayananda
Patra v. District Magistrate, Cuttack’, the petitioner filed a PIL com-
plaining noise pollution from high-sounding explosive fireworks and
other sound-producing devices. The court defined the term “noise” and
observed that adverse “effect of noise on health is a matter which has
yet not received full attention of our judiciary ...” and further, “noise
can well be regarded as pollutant because it contaminates environment,
causes nuisance and affects the health of a person and would, therefore,
offend Article 21, if it exceeds a reasonable limit”. Therefore, it was sug-
gested by the court that a “noise code regulating all aspects of noise pol-
lution may be enacted”. Recognising that noise is a slow agent of death,
the court suggested the following measures to be adopted immediately:
1. The prescribed standards regarding noise by Indian Government
may be enforced strictly in letter and spirit.
2. Separate courts regarding noise pollution may be established.
Qe The cases should be decided within a prescribed time-limit.
4. All District Magistrates and Sub-Divisional Magistrates should be
empowered to issue prohibitory orders under Section 144 CrPC
limiting the hours of loudspeakers in religious places and for other
social gatherings and functions.
5. The subject of environment protection may be made compulsory at
school, college and university levels.
6. The press and electronic media should play a constructive role to
highlight disastrous effects of noise pollution and its remedy.
7. The District Administration and the State Pollution Control Board
shall work out the modalities to prevent catastrophic effect of noise
pollution by ensuring strict compliance with the statutory provi-
sions, scanty though they are.
8. Both Central Government and State Governments should consider
the desirability of having adequate legislative measures to prevent
this fast growing menace which, though appears to be “silent”,
has in fact potentialities of producing a future generation of deaf
persons.
9. Permanent monitoring bodies should be appointed to make peri-
odic review of the situation and suggest remedial measures. The
composition of such body has to be determined by the State or
Central Government.

26. Rabin Mukherjee v. State of W.B., AIR 1985 Cal 222; Gotham Construction Co. v.
Amulya Krishna Ghose, AIR 1968 Cal 91.
27. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70.
28. Ibid; also see, P.A. Jacob v. Supt. of Police, AIR 1993 Ker 1; Guruvayur Devaswom
Managing Committee v. Supt. of Police, AIR 1998 Ker 12.2; Madarsa Road Residents
Assn. v. Lt. Governor, AIR 1995 Del 195.
 LAW |CHAP.
86 ENVIRONMENTAL

Kerala”, pro-
The Kerala High Court, in K. Ramakrishnan v. State of
onal and vio-
nounced that smoking in any form is illegal, unconstituti
tion. It also
lative of Articles 21, 38 and 51(A) of the Indian Constitu
ibiting smok-
directed all District Collectors to promulgate an order proh
under
ing in public. Since smoking in public 1s a health hazard, the State is
ility
a constitutional obligation to protect life and recognise the inviolab
,
of the dignity of man as provided under Article 21 of the Constitution
The Supreme Court in Ghurch of God (Full Gospel)inIndiav.K.K.R.
CASE PILOT Magestic Colony Welfare Assn.°° declared that right to religion under
Articles 25 and 26 are subject to “public order, morality and health”
and no religion prescribes or preaches that prayers are required to be
performed through voice amplifier or beating of drums.

17. EXEMPLARY PUNISHMENT IN CASE

OF CONTEMPT OF COURT
The Supreme Court has recently made a significant pronouncement that
in matters related to environmental pollution the orders of the court
must be obeyed as the pollution of air is causing deleterious effect on the
health of the entire society. Therefore, “exemplary punishment must be
imposed so that like-minded people would not repeat it and such recur-
rence is thwarted”. In this case the contemner was running a hot mix
plant, which was ordered to be closed down by the Supreme Court in
its earlier order and the plant was to be shifted outside Delhi. The con-
temner salvaged himself by feigning ignorance of court’s order which
was in his knowledge. Lastly, he tendered his unconditional apology. The
court held that the conduct of contemner is beyond condonable limit as
it is not a product of remorse or contrition. Nor apology can be made
a weapon of defence. Therefore, the court imposed exemplary punish-
ment and he was sentenced to one week’s imprisonment and a fine of
#1,00,000.°!

18. CORPORATE SOCIAL RESPONSIBILITY

It has been recognised that the “corporate social responsibility” (CSR)
is the part of the principle “sustainable development”. Looking to wide-
spread ramifications of the environmental pollution, international decla-
rations have also resolved that entrepreneurs/industrialists and corporate
bodies own responsibility towards society to recuperate and compensate

29. AIR 1999 Ker 385.

30. (2000) 7 SCC 282: 2000 SCC (Cri) 1350.
31. M.C. Mehta v. Union of India, (2003) 5 SCC 376: AIR 2003 SC 3469.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 87

the direct and indirect loss caused to society.** “Social responsibility

(is the) responsibility of an organisation for the impacts of its decisions
and activities on society and the environment through transparent and
ethical behaviour that is consistent with sustainable development and
the welfare of society”*’. It relates to organisational governance, envi-
ronment, human rights, labour practices, fair operating practices, con-
sumer issues and community involvement as core issues.In the view of
industrial disasters and their widespread ramifications on environment
and human beings, the concept of ethical and social responsibility of the
industries and institutions have been evolved. Moreover the concept of
CSR has been identified with the principle of sustainable development.

18.1 Meaning of CSR

The Supreme Court has observed that “sustainable development and CSR
are inseparable twins, integrated into the principle of inter-generational
equity, not merely human-centric, but ecocentric.”** The court further
explained that “CSR is envisaged as a commitment to meet its social
obligations by playing an active role to improve the quality of life to
the communities and stakeholders on sustainable basis, preferably in the
project area where it is operating”.... CSR strategy has to be put in
practice in line with the Millennium Development Goals as lodged by
UN and adopted by the Government of India in the r1rth Five Year Plan,
1.€. 2007-2012, which could cover the areas of education, health, drink-
ing water/sanitation, environment, solar lighting system, infrastructure
for backward areas, community development and social empowerment,
promotion of sports and traditional forms of arts and culture, generation
of employment opportunities and livelihood to be a part of the national/
local initiatives to provide reliefs/rehabilitation in terms of natural dis-
aster, calamities, etc. Such provision is essential if the industry is dealing
with hazardous substances.

32. In 2011, the Office of the UN High Commissioner for Human Rights issued “The
corporate responsibility to respect human rights: An interpretive guide”. The princi-
ples are organised under a three-pillar framework:
(1) Protect: States have a duty to protect against human rights abuses by third par-
ties, including business enterprises, through appropriate policies, regulations,
and adjudication.
(2) Respect: Businesses have a responsibility to respect human rights, includ-
ing acting with due diligence to avoid infringing on the rights of others, and
addressing adverse impacts with which they are involved.
(3) Remedy: There is a need for greater access to remedy for victims of busi-
ness-related abuse, both judicial and non-judicial.
33. Working definition, ISO 26000 Working Group on Social Responsibility, Sydney,
February 2007.
34. G. Sundarrajan v. Union of India, (2013) 6 SCC 620, 684.
 88 ENVIRONMENTAL LAW fe HAP.

In the above case, nuclear power plant was set up in South Eastern
tip of India, Kudankulam in the State of Tamil Nadu. People living at
nearby places protested against setting up of the plant in that area. The
nature of potential adverse effects of ionising radiation and such acci-
dents in various places in the world created fear and unrest amongst the
nearby dwellers. Therefore, looking to the grave consequences, a PIL
was filed against setting up of the nuclear plant. The court ordered that
as per the guidelines issued by the Department of Public Enterprises,
to create a CSR fund/budget as a specific percentage of net profit of
the previous year. On enquiry it was found that the plant has allocated
funds for providing health, education, and infrastructural development
under CSR at Kudankulam. Besides this 500 crores were also allocated
for “Neighbourhood Development Programme” (NDP) to take various
development works like setting up of cold storage and fishing marketing
area, public board motor works, housing facilities, levelling of roads,
upgradation of health services, ground and drinking water, etc. These
also included opening new primary health centers, setting up of desal-
inate place, solar energy lighting system. This all reveals a close-knit
connection with right to health under Article 21 of the Constitution.
In Banwasi Seva Ashramvy.State of U.P.,*° the court also directed
CASE PILOT that the National Thermal Power Plant shall provide land for housing
to the displaced persons and other facilities like health, education, san-
itation, infrastructure shall be provided as a part of CSR. As a result of
such judgments, many industries and institutions have started their own
social programmes in the field of education, health care, electricity and
potable water.
The Central Pollution Board of the Ministry of Environment and
Forest has also come out with a “Charter of Corporate Responsibility
for Environment Protection” for 17 industries in March 2003 and a sep-
arate Charter on Corporate Responsibility for Environment Protection
(CREP) for the fertiliser industry. It is to be noted that the social respon-
sibility differs from industry to industry and around the industry.
In Union Carbide Corpn. v. Union of India** (Bhopal Gas Leakage
Disaster case), the Supreme Court ordered for the construction of a full-
fledged hospital of at least 500 bed strength with the best of equipment
for treatment of MIC related affliction patients and for medical sur-
veillance of the exposed population. Recently the court has ordered for
cleansing the mess of the industry and the area around the industry. A
group insurance policy was also proposed for the ill-fated persons —
suf-
ferers of MIC leakage for future likely adverse effects.

35. (1986) 4 SCC 753: AIR 1987 SC 374.

36. (1991) 4 SCC 584: AIR 1992 SC 317.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 89

In the Sterlite case*’, the Supreme Court directed the company to

deposit = 100 crore in three months; the court said that the interest
would be used to improve the water and soil in the vicinity of the plant
that has been affected adversely over the years.** The money was to be
invested in fixed deposit with the bank and the interest therefrom was to
be spent for improving the environment, including water and soil, of the
vicinity of the plant.
Similarly, the Supreme Court ordered for the payment of “compensa-
tory payment” by the mine leaseholders for repairing the environmental
depredation wrought by unplanned and to some extent illegal mining
and further to implement the reclamation and rehabilitation plan.*?
Thus environmental reparation was the main purpose of this compen-
satory payment. In this case, the court declared that this compensatory
payment which erring leaseholder will be required to pay, will be = 5
crores per hectare and for areas under illegal overburden dumps, roads,
offices, etc., besides above payment, shall pay at the rate of = 1 crore per
hectare. Such money was to be realised for illegal extraction and the
resultant damage caused to the environment and the ecology of the area.
And money was directed to restore the ecology of that area and to fill
the pits created by illegal extraction of mining ore and clean the area.
Afforestation programme was also to be taken up. The reclamation and
rehabilitation programme was also a part of this direction of the court.
Similarly, in-situ and ex-situ plans are also the part of CSR.*°
It is to be noted that Section 137, Companies Act, 1956 provides for
CSR. It provides if a company “having net worth of rupees five hun-
dred crore or more, or turnover of rupees one thousand crore or more
or a net profit of rupees five crore or more during any financial year
shall constitute a Corporate Social Responsibility Committee” who will
formulate several of CSR and these will be implemented by the com-
pany. Schedule VII of the Act, as recently amended vide the Gazette of
India dated 27 April 2014, has enlisted nine items like eradicating hun-
ger, poverty and malnutrition, promoting health care and sanitation,
promoting education, promoting gender equality, empowering women,
ensuring environmental sustainability, protection of flora and fauna, ani-
mal welfare, protection of national heritage, etc., which can be taken up
by the companies.

37. (2013) 4 SCC 575.

38. It was a Tuticorin-based copper smelting unit in Tamil Nadu which kept on working
for more than ro years without any consent order and caused massive damage to the
environment. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575.
39. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 222.
40. M.C. Mebta v. Union of India, (1986) 2 SCC 176: 1986 SCC (Cri) 122: AIR 1987
SC 965.
 ENVIRONMENTAL LAW [CHAP.
90

18.2 Contemnor to be punished strictly

In T.N. Godavarman Thirumulpad (102) v. Ashoka Khot*', the Supreme
Court declared that if specific orders of the Supreme Court are not
followed, it amounts to contempt of court. Such disobedience strikes
at the very root of rule of law on which present judicial system rests.
Rule of law is the very foundation of a democratic society. One who
knowingly did not follow the orders of the Supreme Court has to be
dealt with strictly. In this case, the contemnor Ashok Khot, Principal
Secretary, Department of Forest, State of Maharashtra, made certain
insertions in the file for the permission of opening sawmills in the State
of Maharashtra. He inserted a handwritten note in the related file dis-
puting the opinion given by the CEC and sent the file for approval to
the Minister-in-charge of Department of Forest, Swarup Singh Nayak.
He, in view of the recommendation of the first contemnor, granted per-
mission for opening of the sawmills. The court came to the conclusion
that the Minister was also well aware of the specific orders the Supreme
Court had passed on 14 July 2003 for the closure of all unlicensed saw-
mills, veneer and plywood industries and not to reopen them and the
opinion expressed by the CEC. The court found both the persons guilty
of wilful disobedience of court orders amounting to contempt of court.
The court also held that the apology is an act of contrition; it must be
offered at the earliest opportunity and in good grace and it is shorn of
penitence. Moreover, apology is not a weapon of defence to purge the
guilt of the offence. Therefore, the court punished both the contemners
for one month’s simple imprisonment. This judgment of the court will be
of deterrent effect on prospective contemners.

19. DIRECTIVE PRINCIPLES OF STATE

POLICY AND THE ENVIRONMENT
Part IV [Art. 36—Art. 51] deals with the directive principles of state
policy. Some of them specifically deal with the various facets of human
health and environment. These directive principles sometimes become
complementary to the fundamental rights and are enforced by courts
of law. The following are some of the directive principles related to
environment:
1. Art. 47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health The State shall
regard the raising of the level of nutrition and standard of living of
its people and the improvement of public health as among its primary
duties... .

41. (2006) 5 SCC 1: AIR 2006 SC 2007.

4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION QI

2. Art. 48-A. Protection and improvement of environment and safe-

guarding of forests and wildlife.— The State shall endeavour to pro-
tect and improve the environment and to safeguard the forests and
wildlife of the country.*
It has been declared time and again by courts that Article 48-A is a con-
stitutional pointer, mandate* to the State and the State has to carry out
its obligation provided under it.
The Supreme Court has declared it in unequivocal terms that there is a
constitutional imperative on the Central Government, State Governments
and bodies like municipalities not only to ensure and safeguard proper
environment but also an imperative duty to take adequate measures to
promote, protect and improve the environment — man-made and natu-
ral environment.**
It must be remembered:
the responsibility of the State to protect the environment is now a
well-accepted notion in all countries. It is this notion that, in international
law, gave rise to the principle of ‘State responsibility’ for pollution emanating
within one’s own territories. This responsibility is clearly enunciated in the
United Nations Conference on the Human Environment, Stockholm, 1972
(Stockholm Convention), to which India was a party.*
Therefore, Article 48-A has clearly bestowed a responsibility on the
State, State officials, State instrumentalities to protect and preserve the
environment.
In T.N. Godavarman Thirumulpad v. Union of India**, the State of
Chhattisgarh took the plea that the State did not have enough money
to implement the rescue plan (to save Wild Buffalo — an endangered
species). The court rejected the plea and directed that the State is duty-
bound under Article 48-A of the Constitution of India to take immediate
steps to ensure the protection of the endangered species (Wild Buffalo)
from extinction and make necessary funds to implement centrally spon-
sored “Integrated Development of Wildlife Habitat, 2009”. The plea of
shortage of fund was found untenable.
It must be remembered that the public trust doctrine is also
a affirmation of the duty of the State to use public property such as
streams, lakes, forests, marsh land, tide lands, for public purpose only.
Moreover, use of such common property by the State shall be in rare

42. This article was incorporated in the Constitution by 42nd Amendment made in the
year 1976.
43. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353: AIR 1997 SC 734, 761.
44. T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606: AIR 2003
SC 724.
45. Paid alcebieoetat Jin Intellectuals Forum v. State of A.P., (2006) 3 SCC 549: AIR
2006 SC 1350.
46. (2012) 3 SCC 277: AIR 2012 SC 1254.
 92 ENVIRONMENTAL LAW |CHAP.
. >

cases, when the abandonment by right is consistent with purpose of the

public trust. Such duty has also been extended to the instrumentalities
of the State also.*”

19.1 Public trust doctrine

The Supreme Court, in M.C. Mehta v. Kamal Nath**, declared in une-
quivocal terms:
Our legal system — based on English common law — includes the pub-
lic trust doctrine as a part of jurisprudence. The State is the trustee of all
national resources which are by nature meant for public use and enjoyment.
Public at large is the beneficiary of the seashore, running waters, airs, forests
and ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot be
converted into private ownership.”
Saghir AhmedJ also reiterated that public trust doctrine is a part of the
law of the land.*° Though it is a common-law doctrine and adopted and
explained by the US Federal Supreme Court.*!
Hon’ble Justice G.S. Singhvi has explained in Centre for Public
Interest Litigation v. Union of India*:
Natural resources belong to the people but the State legally owns them on
behalf of its people and from that point of view natural resources are consid-
ered as national assets, more so because the State benefits immensely from
their value... while distributing natural resources, the State is bound to act in
consonance with the principles of equality and public trust....%3
This case is popularly known as the radio spectrum or 2G Spectrum
Scam case. The court held that air-waves/spectrum is a natural resource
and the State, as a legal owner of these natural resources and as a trus-
tee of the people, has power to distribute them, but “the process of

47. Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407: (2012) 78GG
(Cri) 365: AIR 2012 SC 2326, 2341.
48. (2000) 6 SCC 213: AIR 2000 SC 1997.
49. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
50. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997, 1998.
$1. This doctrine has it origin, in Justinian Institute (530 AD) of Roman
s, later on
adopted by the English common law. The Magna Carta (1215) (with its change
s
introduced in 1641 and 1647) declared that public trust doctrine was
the part of
their established law. They declared that the government has an affirm
ative duty to
administer, protect, manage and conserve fish and wildlife. The
doctrine has also
been acknowledged by the French Civil Code and Spanish Civil
Law as a concept of
property.
$2. (2012) 3 SCC 1: AIR 2012 SC S725.
53. Ibid, 53; it also gets support from the judgment of ICJ in
Democratic Republic of
Congo v. Uganda, ICJ Report 2005, 158 and Resolution
of 17th Session of the UN
General Assembly.
4] THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 93

distribution must be guided by the constitutional principles including the

doctrine of equality and larger public good”.
Again, Aryit Pasayat J, while describing that by destroying natu-
ral environment, man is committing matricide, having in a way killed
Mother Earth, declared in T.N. Godavarman Thirumalpad v. Union of
India**:
[O]Jur legal system based on English common law includes the public trust
doctrine as a part of its jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. The pub-
lic at large is the beneficiary of the seashore, running water, air, forests and
ecologically fragile land. The State as trustee is under a legal duty to protect
the natural resources. These resources meant for public use cannot be con-
verted into private ownership.
The aesthetic use and the pristine glory cannot be permitted to be eroded
for private, commercial or any other use unless the courts find it necessary in
good faith, for public good and in public interest to encroach upon the said
resource.
Most of the judgments pronounced by Indian courts are based on this
English common-law doctrine.
In Orissa Mining Corpn. Ltd. v. Ministry of Environment and
Forest*°, the court explained that the State has the ownership over mines
and mineral deposits beneath the forest land and nobody can raise any
claim or right over them... but “the State holds the natural resources
as a trustee for the people.” Even the Scheduled Tribe and other Forest
Dwellers (Recognition of Forests Rights) Act, 2006 does not vest such
rights on indigenous/tribal people.
This constitutional mandate to preserve the environment and main-
tain ecological balance is a task of the “State” under Article 48-A and
the State should give priority to such issues as they have wide and serious
54. (2002) 10 SCC 606: AIR 2003 SC 724. The public trust doctrine has been highlighted
and amply focussed and explained by the US Supreme Court in various cases, viz.
Illinois Central Railroad Co. v. Illinois, 36 L Ed 1018: 146 US 387 (1892); National
Audubon Society v. Superior Court of Alpine County, (1983) 658 P 2d 709: 33 Cal
3d 419 (Cal SC); W.J.F. Realty Corpn. v. State of New York, 672 NYS 2d 1007
(NY App Div 1998); some of the States of America (Alabama, Alaska, California,
Vermont, Hawaii and Louisiana) have constitutional provisions for public trust
doctrine. |
55. The doctrine has also been reiterated in Nature Lovers Movement v. State of Kerala,
AIR 2000 Ker 131; M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC
464: AIR 1999 SC 2468. Also see, Common Cause (Petrol Pumps Matter) v. Union
of India, (1996) 6 SCC 530: AIR 1996 SC 3538; Banwasi Seva Ashram v. State of
U.P., (1986) 4 SCC 753: AIR 1987 SC 374. See, for more details Prof. Shastri Satish,
Public Trust Doctrine and Environmental Jurisprudence, 187 in Human Rights
Development and Environmental Law — An Anthology (Bharat Law Publication
2006).
56. (2013) 6 SCC 476, 511; also see, Amritlal Nathubhai Shah vy. Union Govt. of India,
(1976) 4 SCC 108.
94 ENVIRONMENTAL LAW |[CHAP.
, >

ramifications.°’ Chinnappa ReddyJ in Sachidanand Pandey v. State of

W.B.°® explained:
Whenever a problem of ecology is brought before the court, the court is
bound to bear in mind Articles 48-A and 51-A(g) of the Constitution which
proclaims it to be the fundamental duty of every citizen of India ‘to pro-
tect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures’. When the Court is
called upon to give effect to the Directive Principles and Fundamental Duties,
the Court is not to shrug its shoulders and say that priorities are a matter of
policy and so it is a matter for the policy-making authority.”
(emphasis supplied)
In T. Damodar Rao v. Municipal Corpn. of Hyderabad®, the court
made it clear that “protection of the environment is not only the duty of
the citizen but it is the obligation of the State and all other State organs
including courts”.*! Therefore, the courts must also be alive to these
considerations and take conscious decisions in environmental pollution
eases:
In a recently decided case, the Supreme Court has quoted with approval
the “public trust doctrine” and that the State is the custodian of natural
resources and has a duty to maintain them. Not merely for the benefit of
public but for the “best interest of flora and fauna, wildlife and so on”.®?
It was also made clear that it is totally unjustified to make the natural
resources a subject of private ownership.
The court has also made it clear that “the State holds the natural
resources as a trustee for people. Section 3 of the Scheduled Tribe and
Other Forest Dwellers Rights (Recognition of Forest Rights) Act, 2006
has conferred various rights to forest dwellers but does not vest such
rights (ownership of minerals) on STs and Traditional Forest Dwellers”.
In a recently decided case—T.N. Godavarman Thirumulpad v.
Union ofIndia®’, the Supreme Court has also made it clear that this doc-
trine “is meant to ensure that all humans have equitable access to natural
resources treating all natural resources as property and not life. That

57. See, Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp SCC 517:
AIR 1987 SC 359.
58. (1987) 2 SCC 295: AIR 1987 SC 1109.
59. Ibid, 1114-1115.
60. AIR 1987 AP 171.
61. T. Damodar Rao v. Municipal Corpn. of Hyderabad, AIR 1987 AP 171.
62. Satyavani v. A.P. Pollution Control Board, AIR 1993 AP 257.
63. Centre for Environmental Law, World Wide Fund-India v. Union
of India, (2013)
8 SCC 234, 257. The court has also referred M.C. Mehta v. Kamal
Nath, (1997) 1
SCC 388.
64. aise Mining Corpn. Ltd. v. Ministry of Environment and
Forest, (2013) 6 SCC
476, 511.
65. (2012) 4 SCC 362, 373-74.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 95

principle has its roots in anthropocentric principle”. But such principle

is not useful when court has “to decide the fate of an endangered species
or the need to protect the same irrespective of its instrumental value”.

20. NO TRANSFER TO PRIVATE PARTIES

It has been decided, time and again, that the doctrine of public trust is
an affirmative duty of the State which require higher degree of judicial
scrutiny. Moreover, the State cannot transfer the public trust property
to a private person. The court can take affirmative action for protecting
the right of the people over natural resources. Therefore this doctrine
enjoins upon the government to protect the resources for the enjoyment
of general public rather than to permit their use for private owners or
commercial purposes.
In Assn. for Environment Protection v. State of Kerala‘’, the State
Government accorded orders for renovation and beautification to a hotel
which was constructed on reclaimed land of a river. The hotel did not
procure the clearance from Environmental Planning and Coordination
Committee which was mandatory under the Government Order of 1978.
The Supreme Court decided that clearance from the committee was sine
qua non. And thus the State should have issued orders after the clearance
or scrutiny of the committee. Therefore, the violation of mandatory con-
dition amounts to violation of the fundamental right to life guaranteed
to the people of the area under Article 21 of the Constitution.

21. LIMITS ON PUBLIC TRUST DOCTRINE

The Supreme Court in Centre for Public Interest Litigation v. Union of
India® explained:
Natural resources belongs to the people but the State legally owns them
on behalf of its people and from that point of view natural resources are
considered as national assets, more so because the State benefits immensely
from their value... the State is empowered to distribute natural resources.
However as they constitute public property/national asset, while distributing

66. Assn. for Environment Protection v. State of Kerala, (2013) 7 SCC 226: AIR 2013 SC
2500. Also see, Fomento Resorts and Hotels Ltd. v. Minguel Martins, (2009) 3 SCC
571: (2009) 1 SCC (Civ) 877; Intellectuals Forum v. State of A.P., (2006) 3 SCC 549:
AIR 2006 SC 1350.
67. (2013) 7 SCC 226: AIR 2013 SC 2500.
68. (2012) 3 SCC 1: AIR 2012 SC 3725. This case is known as 2G Spectrum case. In
this case airwaves/frequencies were named as one of the natural resources, there-
fore, public property. Judgment was delivered by Hon’ble G.S. Singhvi J. The court
quoted with approval many cases including M.C. Mehta v. Kamal Nath, (1997) 1
SCC 388; Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn.
of Bengal, (1995) 2 SCC 161: AIR 1995 SC 1236 and Reliance Natural Resources
Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1 and other cases.
96 ENVIRONMENTAL LAW [CHAP.
’ ,

natural resources the State is bound to act in consonance with the principles
of equality and public trust and ensure that no action 1s taken which may be
detrimental to public interest. Like any other State action, constitutionalism
must be reflected at every stage of the distribution of natural resources.
In this case, airwaves/frequencies were declared public property and thus
this doctrine was applicable in distributing or passing on the rights to use
them. It was declared that under Article 51-A, the public functionaries
also have a fundamental duty like other citizens to protect and preserve
the natural environment.
The term “protect” indicates that the State has to protect the natural
environment whatever we have and the term “improves” indicates that
the State must improve its quality if the environment has degraded or is
degrading. It provides a positive and dynamic connotation, so that the
State may deliberately take steps and impose restrictions on the use of
resources which adversely affect the environment.
P.D. Desai J of the Himachal Pradesh High Court rightly pointed out
the active role of the court in the following words:
To ensure the attainment of the constitutional goal of the protection and
improvement of the natural wealth and environment ... without due regard
to life, liberty and property, the Court will be left with no alternative but
to intervene effectively by issuing appropriate writs, orders and directions
including the directions as to closure of the mines.*”
It was also sounded that while exercising its powers, the court can also
take preventive, remedial and curative measures for the affected natural
wealth and resources. The court also appointed authorities for the super-
vision of such vulnerable areas. Constitutional obligation of Article 48-A
has also been referred to by courts in many cases” and they have based
their judgments on it.
In Consumer Education &@ Research Centre v. Union of India”, the
Supreme Court declared that right to health, medical aid to protect health
and vigour of women is a fundamental right, if Article 21 is read with
Articles 39(e), 41, 43 and 48-A. Thus, the life of a workman becomes
meaningful and purposeful with dignity of person.
In Gainda Ram v. MCD”, the Supreme Court declared that the right
of hawking for carrying on business on the streets cannot be denied if
69. Kinkri Devi v. State of H.P., AIR 1988 HP 4.
70. Example, Nature Lovers Movement v. State of Kerala, AIR 2000 Ker 1383 /D.5.
Rana v. Ahmedabad Municipal Corpn., AIR 2000 Guj 45; A.P. Pollution Control
Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718: AIR 1999 SC 812; M.C. Mehta
v. Union of India, (1998) 6 SCC 60: AIR 1998 SC 2340; S. Jagannath v. Union of
India, (1997) 2 SCC 87: AIR 1997 SC 811; Vellore Citizens’ Welfare Forum vy.
Union
of India, (1996) 5 SCC 647: AIR 1996 SC 2715; Consumer Education &
Research
Centre v. Union of India, (1995) 3 SCC 42: 1995 SCC (L&S) 604: AIR
1995 SC 922.
71. (1995) 3 SCC 42: 1995 SCC (L&S) 604: AIR 1995 SC 922.
72.(2010) 10 SCC 715.
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 97

they are properly regulated. The streets in India are vested in the munici-
pality and they have to be used by the municipalities as trustees.
In Amarnath Shrine, re”, the court clarified that there is a bounden
duty of the State to discharge its constitutional obligation and law also
casts a duty upon the State to ensure the protection to the forests and
environment of the country.
It is also a duty of the State to create awareness of the environmental
issues and education. Therefore, the Supreme Court accepted the sylla-
bus prepared by the NCERT for introduction of environmental educa-
tion in all schools in the country.”

22. FUNDAMENTAL DUTY OF CITIZENS

AND THE ENVIRONMENT
Article 51-A(g) of the Indian Constitution confers one of the fundamen-
tal duties to protect and improve the natural environment. It provides as
follows:
51-A. 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.
In Rural Litigation & Entitlement Kendra v. State of U.P.”, the Supreme
Court clarified:
preservation of the environment and keeping the ecological balance unaf-
fected is a task which not only governments but also every citizen must
undertake. It is a social obligation and let us remind every citizen that it is
his fundamental duty as enshrined in Article 51-A(g) of the Constitution.”
It has also explained that abovementioned two articles [Arts. 48-A and
51(g)] are not only fundamental in the governance of the country but it is
also a duty of the State to apply these principles in making laws; and fur-
ther these two articles are to be kept in mind in understanding the scope
and purport of the fundamental rights guaranteed by the Constitution
including Articles 14, 19 and 21 and also the various laws enacted by
Parliament and the State Legislatures.’”

73. (2013) 3 SCC 247.

74. M.C. Mehta v. Union of India, (2005) 10 SCC 217. The court made detailed orders
for creation of environmental awareness through mass media and educational insti-
tution in M.C. Mehta v. Union ofIndia, (1992) 1 SCC 358: AIR 1992 SC 382.
75. (1985) 3 SCC 614: AIR 1985 SC 1259.
76. Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp SCC 517: AIR
1987 SC 359, per Rangnath Mishra J and M.C. Mehta (Badkhal and Surajkund
Lakes Matter) v. Union of India, (1997) 3 SCC 715. See also, Sushanta Tagore v.
Union ofIndia, (2005) 3 SCC 16: AIR 2005 SC 1975.
77. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549: AIR 2006 SC 1350; T.N.
Godavarman Thirumulpad v. Union ofIndia, (2012) 3 SCC 277: AIR 2012 SC 1254.
 L
ENVIRONMENTALAW [CHAP.
98

In a recently decided case —T.N. Godavarman Thirumulpad v.

Union of India, the court observed that ecocentric approach finds its
place in Article 51-A (g) which “stresses the moral imperatives to respect
intrinsic value, interdependence and integrity of all forms of life.””
The government and its Ministers and employees are also bound to
perform duties enumerated in Article 51-A as they also enjoy fundamen-
tal rights.”
The Supreme Court in Sachidanand Pandey v. State of W.B."° made it
clear that the court must enforce this fundamental duty, and should not
depend only on the policy-makers.
It is clear that preservation of ecology, environment and forests is a
function not only of the State but of every individual as it aims to achieve
social and economic justice. These duties have been particularly invoked
and made basis of decisions.
The Orissa High Court observed that Articles 48-A and 51-A(g) lay
down the foundation for the jurisprudence of environmental protec-
tion obligating the State and citizens alike to protect and improve the
environment.®*!
C.M. Jariwala, one of the pioneers in the field of environmental law,
has rightly observed that Articles 48-A and 51-A(g) reflect the “principle
of intergenerational equity” and various pronouncements made by the
Supreme Court “envisage an emergence of a right of the unborns”.® This
right to inter-generational equity and right of unborn to clean environ-
ment has emerged from Articles 21, 48-A and 51-A(g); and that “exist-
ing generation was ordained not to plunder but use nature according to
one’s capacity to repay”. Further, “man was simply a trustee of nature
for the generations to come and not a grabber who may plunder what he
can”. For this we have to make envicare a part of culture, tradition and
life conduct. The Supreme Court has declared that the “forests”, which
constitute a national asset, “refer to the concept of inter-generational

78. T.N. Godavarman Thirumulpad v. Union ofIndia, (2012) 4 SCC 362, 374.
79. Centre for Public Interest Litigation v. Union ofIndia, (2012) 29GG AIR 2ors SE
3725.
80. (1987) 2 SCC 295: AIR 1987 SC 1109; also see, Kinkri Devi v. State of H.P., AIR
1988 HP 4; General Public of Saproon Valley v. State of H.P., AIR 1993 HP 52;
Satyavani v. A.P. Pollution Control Board, AIR 1993 AP 257; Banwasi Seva Ashram
v. State of U.P., (1992) 2 SCC 202; Narula Dyeing and Printing Works v. Union of
India, AIR 1995 Guj 185.
81. M.C. Mehta v. State of Orissa, AIR 1992 Ori 225; Burrabazar Fire Works Dealers
Assn. v. Commr. of Police, AIR 1998 Cal 121. Followed in Sitaram Chhaparia v.
State of Bihar, AIR 2002 Pat 134. It was also observed that the State is obliged
to
ensure that the Environment (Protection) Act, 1986 is properly implemented.
82.C.M. Jariwala, “Complex Enviro-Techno Science Issues: Judicial Direct
ion”, 42 JILI
(2000) 29, 36-37.
|
4| THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION 99

equity, which has been treated to be an integral part of Article 21 of the

Constitution of India”.*?
In K. Guruprasad Rao vy. State of Karnataka, the Supreme Court
declared that “environment and ecology are national assets. They are
subject to inter-generational equity. Time has now come to suspend all
mining in the...area on sustainable development principle which is a
part of Articles 21, 48-A and 51-A(g) of the Constitution of India.”**
Therefore, a balance between the development of mineral wealth on one
hand and preservation/protection of historical/archaeological/monu-
mental wealth for future generation on the other must be maintained.
It was further explained that “present generation has no right to enjoy
by eating away the time of the future generation. The protection of the
environment and the safety for the present generation in its connotative
sense covers the posterity.”*°
In M.C. Mehta v. Kamal Nath**, the Supreme Court declared that
Articles 48-A and 51-A(g) have to be considered in the light of Article 21
of the Constitution which provides that no person shall be deprived of
his life and liberty except in accordance with the procedure established
by law. Any disturbance of the basic 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.
It has rightly been pointed by the Supreme Court in Rangnath Mishra
v. Union of India*’ that desired enforceability can be better achieved by
providing not merely for legal sanctions but also combining it with social
sanctions and to facilitate the performance of the task through exemplar
role models. The element of compulsion in legal sanction when combined
with the natural urge for obedience of the norms to attract social appro-
bation would make the citizen a participant in the exercise.
To conclude it can be said that constitutional scheme to protect and
improve the environment has been provided under Articles 48, 48-A
and 51-A(g). Article 48-A has used the terms “environment, forests and
wildlife”. These three expressions at one place simply indicates that
these three are interrelated. Protection and improvement of environ-
ment is necessary for safeguarding forests and wildlife, which in turn
protects and improves the environment. Forests and wildlife are clearly

83. Amarnath Shrine, re, (2013) 3 SCC 247, 260.

84. K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418, 481. The case was
related to the protection/preservation of an old temple from mining activity in the
area.
85. G. Sundarrajan v. Union of India, (2013) 6 SCC 620, 734. The case was related
to nuclear power plant involving environmental safety of area and persons living
nearby.
86. (2000) 6 SCC 213: AIR 2000 SC 1997.
87. (2003) 7 SCC 133.
 I0OO) =ENVIRONMENTAL LAW

interrelated and interdependent. They protect each other. ies he

sions of Article 48 (organisation of agriculture and animal a an ae
and Article 48-A and their spirit have been the status of ae ream :
duty in Article 51-A(g). Thus, the State and the citizens bot are un re
constitutional obligation to protect and improve the environment inclu
ing the protection of animals. But the spirit of Article 48 (to protec
cows and calves and other milch and draught cattle) has found expres-
sion in Article 51-A(g) in the words “to have compassion for living crea-
tures”. These three articles also in a form are reasonable restrictions on
fundamental rights.

88. State of Gujarat v. Mirzapur Moti

Kureshi Kassab Jamat, (2005) 8 SCC
AIR 2006 SC 212. In this case ban-on 534:
cow slaughter was declared intra vires
Cons
titution. Also see, Essar Oil Ltd. v. the
Halar Utkarsh Samiti, (2004) 2 SCC
AIR 2004 SC 1834. 392:
 CHAPTER 5§
Environmental Pollution and
Control Under Other Laws

There are various other laws which deal with environmental pollution.
Some of the important laws which have effectively been used to contain
and control the various forms of environmental! pollution are as follows:
. Law of tort
. Penal Code, 1860 (IPC)
. Criminal Procedure Code, 1973 (CrPC)
. Factories Act, 1948
. Public Liability Insurance Act, r991
PY
&w
Am
H National Environment Tribunal Act, 1995
The above laws are discussed below, one by one.

1. ENVIRONMENTAL POLLUTION AS A TORT

Saghir AhmedJ of the Supreme Court has aptly observed, in unequivo-
cal terms:
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 pol-
lution has to pay damages (compensation) for restoration of the environment
and ecology. ... In addition to damages aforesaid, the person guilty of caus-
ing 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.!
In this case, a motel was discharging its untreated effluents in river Beas,
thereby causing water/river pollution. The construction of the motel also
interfered with the natural flow of the river. The motel was directed to
pay compensation and it was also declared that “pollution fine” can also
be imposed on such polluters by following the statutory procedure.

1. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997.
 102 ENVIRONMENTAL LAW [CHAP.
. >,

Law of tort, basically a part of common law, is based on judicial pro-

nouncements. There are various torts which provide relief for environ-
mental pollution under various headings. Torts relating to environmental
pollution are
tort of nuisance,
trespass,
tort of negligence, and
PN
WwW
=> strict liability.

1.1 Tort of nuisance and environmental pollution

It has rightly been observed that deepest doctrinal! roots of modern envi-
ronmental law are found in the common-law principles of “nuisance”.*
The law of nuisance covers various kinds of activities which pollute
the environment. Nuisance means “an unlawful interference with the
use and enjoyment of land or property, or some right over, or in con-
nection with it”. It is recurring state of affairs. This covers the escape of
deleterious things and inconvenience to another. “Nuisance” ordinarily
means anything which annoys, hurts or that which is offensive. It may be
through escape of water, smoke, fumes, gas, noise, heat, vibrations, elec-
tricity, disease, germs, trees, etc. There are two categories of nuisance,
public and private. Public nuisance is a crime and is covered under IPC
[Ss. 268-291] and CrPC [Ss. 133-144].
In Dhannalal v. Thakur Chittarsingh Mehtapsingh*, the Madhya
Pradesh High Court held that the constant noise, if abnormal or unu-
sual, can be actionable if it interferes with another’s physical comfort.
The person causing nuisance may be restrained by injunction, although
he may be conducting his business in a proper manner according to rules
framed in this behalf either by the municipality or by the State.
The focal point of law of nuisance is the material interference with the
ordinary comfort of human existence. The following factors are material
in deciding whether the discomfort is substantial as to make it actionable:
1. Degree of intensity
2. Duration
3. Locality
4. The mode of using the property
Long back, in 1862, the court of Exchequer Chamber in Bamford v.
Turnley*, declared that anything which lessens the comfort or endangers
the health or safety of a neighbour must be an actionable nuisance. It
was a case where the plaintiff complained of smoke and smell from the

2. Rogers, Winfield and Jolowicz on Tort (1984) 377.

3. AIR 1959 MP 240.
4. (1862) 3 B&S 66: 122 ER 27.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS 103

burning of bricks by the defendants. Similarly, large smelting works and

vapour exhaled from those works did physical injury to the shrubs and
trees on the plaintiff’s land and was held to be an actionable nuisance
and air pollution.° ;
In Pakklevy. P.Aiyasami Ganapathi*, the court held that if the persons
laid salt pans in the tank which belonged to the government, it amounted CASE PILOT
to nuisance as the water is rendered useless to people for bathing, drink-
ing and other purposes. It is no defence that other person also laid their
salt pans which also made the water of the tank useless.
In the famous M.C. Mehta v. Union ofIndia’ (River Ganga Pollution
case), the Supreme Court declared that the nuisance caused by the pol-
lution of the river Ganga is a public nuisance, which is widespread in
range and indiscriminate in its effect. Since this affects the community
at large, one can move the court through public interest litigation (PIL).
In this case, tanneries were discharging their untreated effluents into the
river and many nallahs were also releasing the city waste into the river,
thereby causing water pollution. The court issued various detailed direc-
tions to the municipal corporation of Kanpur city to maintain the whole-
someness of the water of the river by taking necessary steps to stop the
release of industrial effluents and municipal waste into the river Ganga.
The Karnataka High Court in V. Lakshmipathy v. State of Karnataka*®
observed that air, water, land and noise nuisance were hazardous, and
the industries cannot be permitted to operate while causing air and noise
pollution affecting the quality of the environment.
Illegal mining at a large scale and overburden dumps, roads, offices,
etc., outside the sanctioned lease area were named as “mass tort” by the
Supreme Court in Samaj Parivartana Samudaya v. State of Karnataka’.
The court also ordered for the compensatory payment for damage to the
environment by illegal mining.
Exposure of unwilling persons, residents of a locality, to the dangerous
and disastrous levels of noise amounts to noise pollution and is known as
noise nuisance.'® In Ram Rattan v. Munna Lal" it has also been made
clear by the courts that noisy locality may not be an actionable nui- CASE PILOT

sance but substantial increase may cause nuisance if it interferes with the
ordinary comfort of human existence. Addition of two power loom in a
locality devoted to noisey trades, such as the printing and allied trades,
may constitute an actionable wrong entitling an occupier of an adjoining

5. St. Helen’s Smelting Co. v. Tipping, (1865) 11 HL Cas 642 (HL).

6. AIR 1969 Mad 351.
7. (1988) 1 SCC 471.
8. AIR 1992 Kar 57.
9. (2013) 8 SCC 154: AIR 2013 SC 3217.
10. M.C. Mehta v. Union ofIndia, (1996) 8 SCC 462: AIR 1996 SC 19.
11. AIR 1959 Punj 217.
 104. LAW
ENVIRONMENTAL SHAP.
[CHA

residence to an injunction.!2 Noise from mining operations has also been

held as noise pollution.'* The courts have also accepted PIL even when
there is a likelihood of air and noise pollution or apprehended nuisance.”
Noise pollution, a slow agent of death, simply connotes disagreeable/
unwanted sound in the atmosphere. Therefore, it requires special/spe-
cific laws to deal with the noise pollution as it has already crossed the
danger level.'’ The use of loudspeakers and explosives must be regulated
as they have proved to be big health hazards.'* Looking at the wide-
spread adverse effect on health, noise has been recognised as a nuisance
which contaminates the environment. Therefore, courts have suggested,
on many occasions, to enforce the standards for noise pollution strictly,
and a comprehensive and independent noise code, regulating all aspects
of noise to be enacted.!”
Ram Baj Singh v. Babulal' is an instance where an individual can claim
damages from a person for causing public nuisance if he can prove some
“special damage” and “substantial injury” from such nuisance to him.
In this case, the plaintiff-appellant, a medical practitioner, constructed a
consulting chamber opposite the brick-grinding machine erected by the
defendant-respondent. There was a distance of 40 feet between the two
and a road intervened between the grinding machine and the consulting
chamber. The plaintiff alleged that the machine generated dust which
polluted the general atmosphere and entered the consulting chamber
causing physical inconvenience to him and the patients sitting inside the
chamber. These allegations were denied by the defendant. The court held
the defendant liable as the facts proved that plaintiff could prove “special
damage”. The court observed:
All that law requires is that when an act amounts to public nuisance, an
individual can sue in his own right only if he is able to prove ‘special damage’
to himself, i.e. damage which is personal to him as opposed to the damage
or inconvenience caused to the public at large or to a section of the public.
Coming to the question of substantial injury, I have already indicated
above that 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 rea-
sonable person belonging to the society. The expression does not take into
account the susceptibilities of hypersensitive person or person attuned to a
dainty mode of living.

12. Ibid.
13. Ved Kaur Chandel v. State of H.P., AIR 1999 HP 509.
14. P.A. Jacob v. Supt. of Police, AIR 1993 Ker 1; Rabin Mukherjee v. State of W.B.,
AIR
1985 Cal 222.
15. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori
70.
16. Ibid; Gotham Construction Co. v. Amulya Krishna Ghose, AIR 1968
Cal QI.
17. See, Bijayananda Patra v. District Magistrate, Cuttack, AIR
2000 Ori Thi
18. AIR 1982 All 285.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS 10g

Therefore, entry of dust from the brick-grinding machine in the con-

sulting chamber and a thin red coating visible on the clothes of the per-
sons sitting there were sufficient evidence of special damage. As it was a
public hazard and was bound to cause harm to the health of persons, it
amounted to substantial injury. The appeal succeeded.
Following are the remedies for private nuisance:

1. Abatement.—It means the removal of a nuisance by the party

injured but it must be peaceably, without danger to life or limb. For this,
a prior notice and adequate opportunity must be given to the other party
before entering upon the land of the other person.
2. Damages.—Aggrieved party/parties can bring an action for
damages. ,
3. Injunction.—lIt is a court’s order for restraining the other party
from continuing an activity which is causing a nuisance. It must be
proved before the court that the injury cannot adequately be compen-
sated. Injunctions have been dealt with by the Specific Relief Act, 1963
from Sections 36 to 42 and the Civil Procedure Code.

1.2 Trespass
Trespass is very closely related to nuisance and is occasionally invoked
in environmental cases. Trespass requires an intentional invasion of the
plaintiff’s interest in the exclusive possession of property. No substantial
injury need to be shown for a plaintiff to succeed in an action for tres-
pass. The only requirement to establish a trespass is that there must be an
“intentional unprivileged physical entry” by a person or object on land
possessed by another.
In Arvidson v. Reynolds Metals Co.'’, the court observed that alu-
minium was produced by the defendant’s plant in a manner that una-
voidably caused fluorides to be discharged into the atmosphere and it
is recognised that fluorides of some types escaping from the plants, if
ingested in excessive quantities, were capable of causing damage to cat-
tle. Nevertheless, the court found for the defendants on the ground that
large-scale production of aluminium is essential to national defence.
In Fairview Farms Inc. v. Reynolds Metals Co.*°, the court held that
airborne liquids and solids deposited upon Fairview’s land constituted
trespass and allowed damages for a six-year period applying the statute
of limitation.
Nevertheless, the trespass theory is inadequate to control air pollu-
tion. The difficulty in identifying the correct source of air pollution in

19. 125 F Supp 486 (1954).

20. 176 F Supp 178 (1959) cited by James E. Krier.
 LAW “HAP.
[CH
106 ENVIRONMENTAL

an area, the cost of litigation and willingness of the people to accept the
status quo, etc. tends to discourage the filing of trespass suits.

1.3 Negligence
Negligence is another specific tort which can help us in preventing envi-
ronmental pollution. Negligence is the failure to exercise that care which
the circumstances demand in any given situation. Where there is a duty
to take care, reasonable care must be taken which can be foreseen to be
likely to cause physical injury to person or property.”! The degree of care
differs from case to case and circumstances to circumstances. Causal
relation must be shown by the plaintiff between the negligence of the
defendant and the injury to the plaintiff.
But causal relation between the negligent act and the injury suffered
is not necessary to be proved by the plaintiff when a deadly pollutant
like carbon monoxide is discharged in air admittedly under the defend-
ant’s exclusive control as was decided in Greyhound Corpn. v. Blakley’.
Therefore, public man can bring an action for lung damage caused by
fine dust particles against local cement and like factories; for example
National Silicon Factory at Baroda (rich chlorosilane if combined with
water to produce hydrochloric acid and silica, its fumes can damage
lungs) asbestos industries, and others. The fibres entering into the body
of man cannot be seen by the naked eyes and cause damage to the lungs
of a man. Such cases call for a very high degree of care.
In Mukesh Textile Mills (P) Ltd. v. H.R. Subramanya Sastry”, com-
mon law action for negligence was applied to prevent any activity caus-
ing environmental pollution. In this case, appellant had a sugar factory
and used to store molasses—a by-product in the manufacture of sugar,
in tanks, two of them were steel tanks and one was of mud, with earthen
embankment close to respondent’s land separated by a water channel.
One day, this third tank collapsed as it was in a dilapidated condition
and it emptied into the water channel ultimately inundated the paddy
fields of the respondent causing damage to the raised crops.
The court based the liability of the appellant-defendant on two
grounds. One, who had stored large quantities of molasses in the mud
tank had the “duty to take reasonable care” in the matter of mainte-
nance. The duty to take care was not properly performed which showed
negligence on the part of the appellant—defendant. The appellant could
reasonably have foreseen that damage was likely to be caused if there
was a breach in the tank. Thus, it was reasonably foreseeable. Secondly,

21. Donoghue v. Stevenson, 1932 AC 562: 1932 All ER Rep 1 (HL),

per Lord Atkin.
22.262 F 2d gor (1958).
23. AIR 1987 Kar 87.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS 107

liability arises as the land was put to the non-natural use. The court held,
“in both situations, a duty-situation emerges and the appellant must be
held liable for the consequences of the escape of the fluid from its tank.”
In Hagy v. Allied Chemical and Dye Corpn.**, the appellant, Mrs
Hagy, suffered injury to her larynx when her husband drove through
smog which contained injurious sulphuric acid components negligently
emitted from the defendant’s plant. The court allowed the damage for
negligence of the corporation. Though dangers caused by environmental
pollution are often potential dangers difficult to evaluate, but the court
can help to eliminate such conditions.

1.4 Doctrine of “strict liability” and “absolute liability”

The tort is comparatively new (came into existence in 1868). The rule in
Rylands v. Fletcher’ is known as a tort of strict liability. The rule pro-
pounded in this case by BlackburnJ is:
the person who for his own purpose brings on his land and collects and keeps
there anything likely to do a mischief if it escapes, must keep it at his peril,
and if he does not do so, is prima facie answerable for all the damage, which
is the natural consequence of its escape.
The doctrine of “strict liability” — a liability without fault on the part of
the defendant — is very significant in relation to cases arising from envi-
ronmental pollution because it has been applied to a remarkable variety
of things — fire gas, explosions, electricity, oil, noxious fumes, colliery
spoil, poisonous vegetation, etc. Further, this rule applies equally to the
injuries caused to person’ and property’. But unless there is an escape
of the noxious substance or article from the land of the defendant where
it is kept, to the land of the plaintiff, there is no liability under the rule.”®
It was applied by the Indian courts in many cases.
Rejecting the theory of strict liability propounded in Rylands v. Fletcher,
the Indian Supreme Court in M.C. Mehta v. Union of India?’ (Oleum Gas
Leakage or Shriram Food and Fertiliser Industry case) declared that we have
to develop our own law and if we find that it is necessary to construct a new
principle of liability to deal with unusual situation ... on account of hazardous
or inherently dangerous industry ... we should not hesitate to evolve principle
of liability though such principle might have been evolved in England. In the
words of Bhagwati CJ: An enterprise which is engaged in a hazardous or

24. (1954) 122 Cal App 2d 361.

25. (1868) LR 3 HL 330: (1861-73) All ER Rep x (HL).
26. Rylands v. Fletcher, (1868) LR 3 HL 330: (1861-73) All ER Rep 1 (HL).
27. Waschak v. Moffat, cited by Krier in Environmental Law & Policy, 379 Pa 441: 109
A 2d 310 (1954).
28. Read v. J. Lyons & Co., 1974 AC 156: (1946) 2 All ER 471 (HL).
29. (1997) 2 SCC 353: AIR 1997 SC 734.
 108 ENVIRONMENTAL LAW [CHAP.

inherently dangerous industry which poses a threat to the health and safety
of the persons working in the factory and residing in the surrounding areas
owes an absolute and non-delegable duty to the community to ensure that
no harm results to anyone on account of hazardous or inherently dangerous
nature of the activity which it has undertaken. The enterprise must be held to
be under an obligation to provide that the hazardous or inherently dangerous
activity in which it is engaged must be conducted with highest standards of
safety and if any harm results on account of such activity, the enterprise must
be absolutely liable to compensate for such harm and it should be no answer
to say that it had taken all reasonable care and that the harm occurred with-
out negligence on its part.”°
Further, it was explained that such industry must be held strictly and
absolutely liable for causing harm as a part of social cost for carrying on
hazardous or inherently dangerous activity.
In this case there was leakage of oleum gas — a toxic gas from Shriram
Food and Fertiliser Industry, on 4 December 1985. As a result of this an
advocate died on account of inhalation of oleum gas and several persons
were taken ill. The Industry was held liable on the principle of “absolute
liability” as mentioned above.
It was also declared by the court that in cases of damage/harm to any-
one on account of accident in the operation of hazardous or inherently
dangerous activity, as in this case of leakage of gas,
the measure of compensation must be correlated to the magnitude and capac-
ity of the enterprise because such compensation must have deterrent effect.
The larger and more prosperous the enterprise, greater must be the amount
of compensation payable by it.
The above observations about the basis of liability of the Supreme Court
were quoted with approval by Ranganath Mishra J in Union Carbide
Corpn. Ltd. v. Union of India*' (Bhopal Gas Leakage Disaster case)
but the court refused this principle of “damages be proportionate to the
superiority of the offence” as the amount of the US $ 470 million was
a result of a settlement between the Union Carbide Corporation and
the Union of India. In this case, there was leakage of methyl isocyanate
(MIC) gas from the Union Carbide Corporation at Bhopal, on 2 and 3
December 1984. It was reported that more than 3000 persons died the
same night and two lakh persons were taken ill of various ailments.
The court in this case also held that the Union Carbide Corporation
would also compensate for the injuries to unborn children whose con-
genital defects were traceable to MIC toxicity inherited or derived
congenitally.

30. M.C. Mehta v. Union of India, (1987) 1 SCC 395: 1987

SCC (L&S) 37: AIR 1987
SC 1086.
31. 1994 Supp (3) SCC 328.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS 109

1.5 Conclusion
Law of nuisance for environmental protection is a less effective measure
because in case of public nuisance “some special injury” is necessary to
prove to succeed, and in private nuisance, the individuals do not take
interest in coming to a court of law. The common law action of trespass
is less known to India and is not suited to deal with the general issues of
environmental degradation as it requires some direct physical interfer-
ence by one against the person or property of another. Environmental
degradation is generally indirect in its nature and effect. So person
aggrieved by it may find it difficult to establish a successful legal action
for trespass. In case of an action for negligence, environment pollution
cases have some inherent difficulties. Firstly, the plaintiff has to prove
the casual connection between the negligent act and the plaintiff’s injury,
and that it was foreseeable by the defendant. Secondly, the standard of
care is seriously affected by the state of scientific knowledge as to causes
and effects of air and water pollution. Therefore, M.C. Mehta v. Union
of India*’, principle of absolute liability with non-delegable duty rule, is
an appropriate remedy to check environmental pollution effectively.
Insurance against abnormally dangerous harm may be a proper remedy in
deciding the question of liability. Considering the pollution problem in its
totality, interests of the public may considerably overshadow the interests
of the parties concerned .... This requires that the public point of view be
searched out and decisions be taken in the light of social policy.

2. RELATED PROVISIONS OF
THE PENAL CODE, 1860 (IPC)
IPC has a chapter on “Offences affecting the public health, safety, con-
venience” (Chap. XIV). Section 268 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.
The section further explains that a common nuisance is not excused on
the ground that it causes some convenience or advantage.
Thus, an act which tends to or causes interference with the health,
safety, comfort, convenience of the public at large will be considered as
public nuisance. It covers all types of pollutions — land pollution, air
pollution, water pollution, noise pollution, etc. Section 290 provides
punishment for public nuisance which otherwise is not punishable under
the Act, with a fine which may extend to ¥200.

32. (1987) x SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
 [10 ENVIRONMENTAL LAW [CHAP.

In Kurnool Municipality v. Civic Assn.*, it was held that municipality

can be convicted for not maintaining the cleanliness of the town under
Section 290. ay
It is to be noted that no prescriptive right can be acquired to maintain
nuisance, and no length of time can legalise a public nuisance.”
The Kerala High Court held that smoking, in any form, in a pub-
lic place is a public nuisance and cases can be filed under Section 290
IPC and it is violative of right to life provided under Article 21 of the
Constitution.
In this chapter, there are some other provisions which deal with spe-
cific pollution cases/kinds. These provisions are given in Table tr:

TABLE 1 Sections under Indian Penal Code

Section 269 Negligent actlikelyto spread infection ofdisease dangeroustolife =

‘Section270 0 Malignant actlikely tospreadinfection ofdisease dangeroustolife =
‘Section277 Foulingwater ofpublicspringorreservoir
‘Section278 Making atmospherenoxioustohealth
‘Section 284 Negligent conductwithrespect topoisonoussubstance
“Section285. Negligent conductwith respect tofire or combustible patie. ac Weel
Section 286 Negligent conduct with respect tocxplosivesubstance =
“Sections 425-440 Include varioustypes of mischief including mischief bykilling or maiming animals, cattle
Since the punishments provided for the abovementioned offences are too
meagre, looking to present-day gigantic problem of environmental pollu-
tion, therefore, most of the provisions are ineffective and are not helpful
in curbing the problem of environmental pollution.

3. PROVISIONS UNDER THE CRIMINAL

PROCEDURE CODE, 1973 (CrPC)
Chapter X CrPC — Part B, has provided a provision for public nuisance
which relates to environmental pollution. Section 133, CrPC empowers
a District Magistrate, Sub-Divisional Magistrate, to stop the nuisance
on receiving information. “Nuisance” is defined in very liberal terms
and includes construction of structures, disposal of substances, conduct
of trade or occupation; under this section, the court issues conditional
order for the removal of nuisance.** But in case of disobedience of
the
33. Kurnool Municipality v. Civic Assn., 1973 Cri LJ 1227 (AP).
34, Municipal Commr. of Suburbs of Calcutta v. Mohd. Ali,
(1871) 16 Suth WR (Cri) 6:
(1871) 7 Beng LR 499.
35. K. Ramakrishnan v. State of Kerala, AIR 1999 Ker 385.
36. Govind Singh v. Shanti Sarup, (1979) 2 SCC 267:
1979 SCC (Cri) 444. In this case the
bakery owner constructed chimney and oven and was
emitting smoke on a highway.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS III

orders, the court can impose penalties provided under Section 188 IPC
which includes imprisonment for a maximum period of six months and
a fine which may extend to 1000 or with both.
The imperative tone of Section 133 CrPC read with punitive temper of
Section 188 IPC make the prohibitory act a mandatory duty.*’ The deci-
sion of the Supreme Court in Municipal Council, Ratlam v. Vardhichan**
has made it clear that a citizen can always bank upon Section 133 CrPC
for the removal of the nuisance of pollution. It is of greater significance
in view of the fact that the Water Act and the Air Act do not provide
for the affected parties a right to prosecute violators of the provisions.
Another significant point is that corporate bodies like companies and
corporations can also be held responsible for pollution nuisance under
these provisions. The court observed that “whenever there is a public
nuisance, the presence of Section 133 CrPC must be felt and any contrary
opinion is contrary to the law”.
But it is not clear that municipalities and other local bodies (other than
the affected parties) can initiate prosecution proceedings against indus-
tries and factories for causing environmental pollution. Therefore, it is
suggested that the prosecution power may also be vested in the munici-
palities and other local body authorities of the Pollution Control Board.
It has been clarified that sub-section (1) of Section 133 gives ample
powers to make order prohibiting the discharge from a factory into a
river of an effluent which might be injurious to health of the community
which has right to use the water of the river. But it is essential to prove
before an order is passed by means of scientific enquiry against a wrong-
doer. It was declared in Deshi Sugar Mills v. Tupsi Kahar’’, that orders
under Section 133(1) cannot be made only on the basis that the complaint
has been filed by more than two persons. To take action under the said
section, there must be definite, scientific and convincing evidence.
In Krishna Gopal v. State of M.P.*°, Section 133 CrPC was effectively
used. In this case, the complaint was made against noise, air pollution
due to fly ash and discharge of steam in the air from a glucose factory.
This all cumulatively caused inconvenience and discomfort to the per-
sons of the locality. But complaint was made by a lady resident of the
locality as her husband was a heart patient. The main question before the
High Court was whether the alleged nuisance could be said to be a public

It affected the health of the people and the oven could cause conflagration. The court
held it nuisance and declared that it affects the health, safety and convenience of the
public at large. Therefore, the court ordered for the demolition of the chimney and
the oven under Section 133 CrPC.
37. Municipal Council, Ratlam v. Vardhichan, 1980 SCC (Cri) 933.
38. Ibid.
39. AIR 1926 Pat 506.
40. 1986 Cri LJ 396 (MP).
 II2 LAW
ENVIRONMENTAL HAP.
[CHA

nuisance and whether the orders of the removal of boiler or factory can
be made on the complaint of a single individual? The court made a very
significant pronouncement, which is as follows:
It is not the intent of law that the community as a whole or large number of
complainants come forward to lodge their complaints or protest against the
nuisance. Law does not require any particular number of complainants. A
mere reading of Section 133(1) would go to show that the jurisdiction of Sub-
Divisional Magistrate can be invoked on receiving a report of a police officer
or other information ... .7!
The court ordered for the removal of the boiler and for the closure of the
factory as it was a public nuisance to the locality.
Similarly, the Rajasthan High Court also ordered for the removal of
a business enterprise from a residential locality in Ajeet Mehta v. State
of Rajasthan. In this case the complained business involved loading,
unloading and stocking of fodder in a residential locality causing pollu-
tion to the atmosphere. The orders were issued by the Magistrate under
Section 133 CrPC.
In Madhavi v. Thilakan*’, the Kerala High Court dealing with the nui-
sance created by an automobile workshop in a residential area, declared
it a health hazard. Regarding the nature of the public nuisance under
Section 133 CrPC, the court observed:
We recognise every man’s home to be his castle which cannot be invaded by
toxic fumes, or tormenting sounds. This principle was expressed through
law and culture, consistent with nature’s ground rules for existence, has been
recognised in Section 133(1)(b). ‘The conduct of any trade or occupation, or
keeping of any goods or merchandise injurious to health or physical comfort
of community’, could be regulated, or prohibited under the section.“4
But there are some High Courts who have decided that remedy of public
nuisance — causing air and water pollution — does not lie in Section 133,
but under the Water (Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act, 1981.* But views have
been expressed against such observations of the courts.‘
In M.C. Mehta v. Union of India*’ (Oleum Gas Leakage case), gas
having leaked from the Shriram Food and Fertiliser Industry, New Delhi,
the District Magistrate, Delhi ordered to close down the factory under

41. Ibid, 399.

42. 1990 Cri LJ 1596 (Raj).
43. 1989 Cri LJ 499 (Ker).
44. Ibid, sox.
45. Tata Tea Ltd. v. State of Kerala, 1984 KLT 645; Abdul
Hamid v. Gwalior Rayon Silk
Mfg. (Wvg.) Co. Ltd., 1989 Cri LJ 2013 (MP).
46. See, P. Leelakrishnan, Nair, Murthy, “Evolvin
g Environmental Jurisprudence” in P.
Leelakrishnan, Law and Environment (1992) 126-152.
47. (1986) 2 SCC 325: AIR 1987 SC 982.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS 113

Section 133 CrPC. This case culminated into a historical case in the field
of the liability of industries/operations/process engaged in a hazardous or
inherently dangerous activity.
The Andhra Pradesh High Court in Nagarjuna Paper Mills Ltd. v. Sub
Divl. Magistrate*® (Nagarjun Paper Mills), declared that the Magistrate
has powers to abate public nuisance and grant injunctive relief under
Section 133 as long as such orders of the Magistrate do not interfere with
the orders of the Pollution Control Board or Chief Judicial Magistrate
issued under the Water (Prevention and Control of Pollution) Act, 1974.
In this case the Nagarjun Paper Mills were discharging untreated effluent
causing water and air pollution for the residents of the nearby area. On
the report received from the Engineer of the Pollution Control Board,
the Magistrate issued conditional orders under Section 133 to abate the
public nuisance within a stipulated time. When orders were not carried
out, the Magistrate issued final order under Section 141. Such powers of
the Magistrate were challenged in the High Court on the basis that since
the Pollution Control Board has powers under the Water Act, 1974, the
Magistrate was not entitled to exercise powers under Section 133. Such
objection was dismissed by the High Court.
The Kerala High Court in P.C. Cherian v. State of Kerala*’, explained
the nature and scope of Section 133. In this case two rubber industries,
situated in industrial area, were using carbon black for carbon mixing
process. The excess carbon black usually disseminated into the atmos-
phere. There was no necessary equipment to prevent such dissemination
of carbon black which caused discomfort, injury and nuisance to the
people of the nearby area and even prevented them from attending to
their advocation as there were 600 Christian families in the area. When
they used to come to attend the Church prayers, their clothes soiled as
a result of atmospheric pollution. Under these circumstances, the Sub-
Divisional Magistrate, Kottayam under Section 133 directed the stop-
page of mixing of carbon in both the factories. The petitioner claimed
that there was no ground to invoke Section 133 by the Magistrate as the
licence was issued under the Panchayat Act and the Factories Act, 1948
on satisfying the conditions which included absence of hazard to health.
The High Court after examining the whole issue came to the conclu-
sion that dissemination of carbon black in the atmosphere was a public
nuisance and a health hazard as it effects the respiratory organ of the
people. This all was an outstanding instance of air pollution. It was also
causing discomfort to the community of the area.
The court also considered the question that the stoppage of working
of the factory under Section 133 would affect the right of livelihood of

48. 1987 Cri LJ 2071 (AP).

49. 1981 KLT 113.
 SHAP.
[CHA
[14 ENVIRONMENTAL LAW
Is
the employees. Answering this, the court observed that this argument
not applicable here
car-
because the danger that general public has to face by service mixing of
bon without adequate equipment to prevent dissemination of carbon, out-
weighs the advantage in the form of jobs for a few persons and that too under
threat of hazards to their own health.
Under these circumstances, the Sub-Divisional Magistrate was justified
in invoking the powers under Section 133 CrPC and directing them to
stop the service of mixing of carbon in their factories. In this case the
court held that it is not necessary to establish toxicity on scientific basis
before issuing orders to restrain the public nuisance. The court also
referred to the remarks of the Supreme Court in Municipal Council,
Ratlam v. Vardhichan® that “public nuisance, because of pollutants
being discharged by big factories to the detriment of the poorer section,
is a challenge to the social justice component of the rule of law”.

3.1 Section 133 is independent and different from

other pollution laws
The Supreme Court in State of M.P. v. Kedia Leathe iquor Ltd.°'
CASE PILOT has declared that the area of Section 133 of the Code and pollution laws
like the Water (Prevention and Control of Pollution) Act, 1974 and the
Air (Prevention and Control of Pollution) Act, 1981, are different and not
identical in nature. While Section 133 is in the nature of preventive meas-
ure, the provision contained in the above two Acts are not only cura-
tive but also preventive and penal. The provisions appear to be mutually
exclusive and different in their respective fields and there was no impedi-
ment for their existence side by side. Moreover, passing of new pollution
control laws, as mentioned above, does not repeal Section 133 CrPC.

3.2 Condition precedent to apply Section 133

In Subelkhan Khudyarkhan v. State of Maharashtra, the Supreme Court
made it clear that for the application of Section 133 CrPC, the condition
precedent is that the conduct of the trade must be injurious to the health
or physical comfort of community. There must be imminent danger to
health or physical comfort of the community in locality in which trade
or occupation is conducted. It is not intended to settle private disputes.

50. (1980) 4 SCC 162: 1980 SCC (Cri) 933.

S1. (2003) 7 SCC 389: 2003 SCC (Cri) 1642.
52. (2009) 5 SCC 586: (2009) 2 SCC (Cri) 726.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS ET5

4. FACTORIES ACT, 1948

One of the basic laws dealing with environmental pollution from indus-
tries is the Factories Act, 1948. The term “occupation”, used in the
Environment (Protection) Act, 1986 has been adopted from the Factories
Act. In various cases relating to industrial pollution— Taj Trapezium
case’; Kanpur Tanneries case**; Oleum Gas Leakage case; U.P.
Banat Control Board v. Modi Distillery°; Consumer Education &
Research Centre v. Union of India*’ —the Factories Act has been referred
to by the Supreme Court. This Act is the first Code which deals with
industrial safety, discharge of effluents/pollutants, hazardous substances
and occupational health and welfare of workers employed in factories.
Section 12 of the Act provides that the occupier is duty-bound to fol-
low effective arrangements in the factory for treatment of wastes and
effluents due to manufacturing process carried on in the factory as to
render them innocuous. It also empowers States to frame rules for the
safety, health and for discharge and disposal of effluents of a factory.
Section 14 deals with dust and fumes.
Keeping this fact in view that several chemical industries have come
up which deal with hazardous and toxic substances, an amendment was
made in the Factories Act in the year 1987 and a new Chapter IV-A
was incorporated in it. This chapter has “provisions relating to hazard-
ous process”. New sections incorporated under the chapter are given in
Table 2.

TABLE 2 Chapter IV-A

Section 41-A Constitution of site appraisal committees t

| Section 41-BO rine” in
Compulsory disclosure of information byoccupier involving hazardousprocess. :
“Section ke DHS YEH Be ey Specificresponsibility of the occupier in relation tohazardous process ine ae
Section 4D ‘ Bower of Central Government toappoint enquiry committee (in the event of
occurrence ofanextraordinarysituation)

ean EMER At be cilia nlewnrdtcaoe tS,1G

andtoxicsubstances(schedule attached)
Section41-F _-—_ Permissible limitsofchemical
41 % Ye Ate
“Section 4)- ‘sparticipation insafety management
esIA Worker's =

“Section 41-Hpved tha 1 Right ofworkers to warn about imminent danger

Under Section 87, the State Government is also authorised to declare

any manufacturing process or operation in a factory which exposes any

53. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353.

54, M.C. Mehta v. Union of India, (1988) 1 SCC 471: 1988 SCC (Cri) 141.
55. M.C. Mehta v. Union ofIndia, (1986) 2 SCC 325: AIR 1987 SC 982.
56. (1987) 3 SCC 684: 1987 SCC (Cri) 632: AIR 1988 SC 1128.
57. (1995) 3 SCC 42: 1995 SCC (L&S) 604: AIR 1995 SC 922.
 116. ENVIRONMENTAL LAW |CHAP.

person to a serious risk of bodily injury, poisoning or disease, as danger-

ous and prohibit/restrict the employment of women, adolescents or chil-
dren in the unit as hazardous process unit. On account of serious hazard
of injury or death, it can prohibit the employment in the factory and can
fix minimum number to attend the factory [S. 87-A].
The Manager of a factory is duty-bound to inform the proper author-
ities in prescribed form about the occurrence of an accident, dangerous
occurrence, any disease (specified in Third Schedule).** The failure on the
part of the Manager will make him liable to be penalised under various
provisions of the Act.°*?
Section 96-A provides that whoever fails to 1) compulsorily disclose
information regarding hazardous process; or 2) maintain health record
of workers, appoint qualified and experienced persons and provide med-
ical aid to workers; or fails to inform the workers of the factory of likely
imminent damage to lives/health due to accident, shall be punishable
with imprisonment for a term which may extend to seven years and with
a fine which may extend to 2,00,000.
Abovementioned new amendment incorporating Chapter IV-A is
a welcome venture as it provides for the regulation of hazardous sub-
stances so as to protect the health of the workmen. Though, it is quite
comprehensive in nature, it does not provide for citizen’s suit.
The Insecticides Act, 1968 also empowers the Central Government
and the State Governments to prohibit the sale, distribution and use of
dangerous insecticides. The manufacture and distribution of insecticides
are now regulated through licensing under this Act, the violation of
which leads to prosecution and penalties. The Act establishes a Central
Insecticides Board to advise the Central and the State Governments. A
committee under the Board registers insecticides after examining their
formulae and it also verifies claims regarding their safety and efficacy.
The Board can ban any pesticide or refuse to register any pesticide.
Further, it also prohibits any import of misbranded, prohibited or unreg-
istered insecticide [Ss. 17 and 18]. The Insecticides Rules, 1971 provides
the procedure for licensing, packing, labelling and transporting insecti-
cides apart from the provisions for workers’ safety during the manufac-
ture and handling of insecticides through protective clothing, respiratory
devices and medical facilities.

58. Under Ss. 88, 88-A, 89. In Consumer Education c& Research
Centre v. Union of
India, (1995) 3 SCC 42: 1995 SCC (L&S) 604: AIR 1995
SC 922, the Supreme Court
declared that the employer is vicariously liable for occupation
al diseases like the
workers affected by asbestosis and liable to pay compensation
to workmen for health
hazards. It was clarified that right to life under Art. 21
of the Constitution includes
right to livelihood, better standards of life, hygienic condit
ions in workplace and
leisure, and right to health and medical care both during
and after service.
59. Chap. X [Ss. 92-105] provides for the “Penalties and
Procedure”.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS rr7

A survey and comparison with the laws of other countries reveals that
it lacks effective implementation machinery and various deadly pesti-
cides like Agent Orange are not banned by this Act.

5. PUBLIC LIABILITY INSURANCE ACT, 1991

This Act was passed with an object “to provide immediate relief to the
persons affected by accidents occurring while handling any hazardous
substances and for matters connected therewith or incidental thereto”. It
consists of 23 sections and one schedule.
Section 3 of the Act propounded the doctrine of “no-fault liability” by
imposing liability on the owner for death or other injury to any person
(other than the workmen) or for damage to property. The claimant shall
not be required to establish any wrong of any person (including that of
the owner) or neglect or default of any person.
The Madhya Pradesh High Court has also declared that “Section 3(2)
speaks about the strict liability without fault involving death due to haz-
ardous substances”. It is not necessary for the claimant to plead and
establish that the death, injury or damage ... was due to any wrongful
ar
The owner is required to take out insurance before he starts handling
any hazardous substance which will be renewed from time to time [S. 4].
The Collector of the District has been empowered to invite applications
for relief to be awarded under the Act in case an accident occurs. Any
aggrieved person, legal representative or duly authorised agent can apply/
claim for relief if he has suffered any loss/damage from the occurrence
of the accident involving hazardous substances [Ss. 5 and 6]. A claim for
relief shall be disposed of expeditiously, say within three months of the
receipt of the application for relief.
Section 14 provides the penalty for contravention of the provisions of
this Act. Further, when an offence is committed by a company, the person
in charge of and responsible to the company for the conduct of its busi-
ness and the company shall be deemed to be guilty of the offence [S. 16].
Thus it enunciates the principle of “vicarious liability”. It also provides
that director, manager, secretary or other officer shall be deemed guilty
if it is proved that the act was committed with his consent, connivance
or is attributable to him. Head of Government Department shall also
be held liable accordingly. Provision for “Environment Relief Fund” has
also been provided under the Act.
The Act was passed by Parliament having in view the MIC gas leakage
from the Union Carbide Corporation at Bhopal and Oleum gas leakage
from the Shriram Food and Fertiliser Industry at Delhi. It was observed

60. M.P. SEB v. Collector, AIR 2003 MP 156.

118 LAW
ENVIRONMENTAL SHAP.
[CHA

that it takes a long time to provide relief to the sufferers of accidents

involving hazardous substance and, moreover, to claim compensation
from the erring industry is a tedious, lengthy and cumbersome proce-
dure. Therefore, to provide immediate relief this benevolent Act was
passed by Parliament.

6. NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995

Exercising its power under Section 3(3), Environment (Protection) Act,
1986 to constitute an authority/authorities for the purpose of exercising
and performing such powers and functions as are necessary to protect
and improve the environment, the Indian Parliament passed this Act and
the President assented on 17 June 1995.

6.1 Statement of objects and reasons

An Act to provide for strict liability for damages arising out of any accident
occurring while handling hazardous substance and for the establishment of
a National Environment Tribunal for effective and expeditious disposal of
cases arising from such accident, with a view to giving relief and compensa-
tion for damages to persons, property and the environment and for matters
connected therewith or incidental thereto.
Whereas decisions were taken at the United Nations Conference on
Environment and Development held at Rio de Janeiro in June 1992, in which
India participated, calling upon the States to develop national laws regarding
liability and compensation for the victims of pollution and other environ-
mental damages;
And whereas it is considered expedient to implement the decisions of the
aforesaid Conference so far as they relate to the protection of environment
and payment of compensation for damage to persons, property and the envi-
ronment while handling hazardous substances.
The Act consists of 31 sections divided into five chapters.
Section 3 of the Act enunciates the principle of “no-fault liability”.
It provides that if an accident results in damage/death to any person or
damage to person, property or environment, the owner shall pay com-
pensation for death, injury or damage. Moreover, claimant shall not be
required to prove any neglect, wrong, or default of any person. If the
death, injury or damage is the result of combined activities or of several
such activities, operations and processes, the tribunal may apportion the
liability for compensation amongst those responsible for such activity,
Operation or process on an equitable basis.
Application for compensation can be made to the tribunal by 1) one
who sustains injury; 2) owner of the property; 3) legal representatives
of the deceased; 4) an agent duly authorised; 5) representative body/
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS II9

organisation of environment recognised by the Central Government; or

6) the Central/State Government/local authority. Even the tribunal may,
if it thinks fit, take up the cases for claims for compensation suo motu.
The application must be made within a period of five years from the date
of occurrence of the accident.°!
The tribunal is not bound to follow the procedure laid down by the
CPC and it shall be guided by the principles of natural justice. It also
empowers the tribunal to regulate its own procedure.”
The Central Government shall, by notification, establish National
Environment Tribunal and its Benches. The tribunal and Benches will
consist of judicial members and technical members who have adequate
knowledge/experience to deal with administrative, scientific or technical
aspects of the problems relating to environment.
The tribunal and its Benches are authorised to award compensation
and such compensation payable on ground of any damage to the envi-
ronment which shall be remitted to the authority as provided under
Section 7-A, Public Liability Insurance Act, 1991 for being credited to
the Environment Relief Fund. This amount of compensation shall be uti-
lised for improving the damaged environment.®?
An appeal against the award of the tribunal shall lie to the Supreme
Court within a period of 90 days from the date of award. But the Supreme
Court shall not entertain any appeal unless the appellant deposits the
amount of the award decided by the tribunal.®*

6.2 Penalty for the failure to comply with the

orders of the tribunal
Section 25 provides that if any person fails to comply with the orders
for compensation of the tribunal, he shall be punished with imprison-
ment which may extend to three years, or with fine which may extend
to ¥10,00,000, or with both. If the offence is committed by a company,
every person who, at the time of occurrence, was directly in charge of
and was responsible to the company shall be deemed to be guilty of the
offence and shall be penalised. If it is proved that
the offence has been committed with the consent or connivance or is attrib-
utable to any neglect on the part of a director, manager, secretary or other
officer of the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished.

61. S. 4.
62.5. 5.
65: S¥22.
64. S. 24.
120 ENVIRONMENTAL LAW [c HAP.

ial proceed-
The proceedings of the tribunal shall be deemed to be judic
in the
ings®, and officers shall be deemed to be public servants with
meaning of Section 21 IPC.
ensa
Schedule of the Act provides various “heads under which comp
tion for damages may be claimed”. They are 14 in number, including the
head claims on account of harm, damage or destruction to the fauna;
and claims on account of harm, damage or destruction of flora includ-
ing aquatic flora, crops, vegetables, trees and orchards. The heads also
include — claims including cost of restoration on account of any harm or
damage to environment including pollution of soil, air, water, land and
ecosystem.
The National Environmental Tribunal Act, 1995 has got laudable
objectives to achieve, but this has yet to be fully operative, active and
yet to be fully effectively implemented. The Supreme Court has also time
and again pointed out that “there is an urgent need to make appropriate
amendments so as to ensure that at all times, the appellate authority or
tribunal consists of judicial and technical personnel well versed in envi-
ronmental laws” and make the authority efficacious. Such tribunals are
still to be established in the form of Benches.*

7, ENVIRONMENTAL POLLUTION
AND DISASTER MANAGEMENT
The Bhopal gas disaster (leakage of MIC gas), which is supposed to be
the worst industrial disaster in the world, raised an awareness that there
must be a disaster management policy and law to deal with such man-
made disasters®’. Therefore, disaster management has emerged as a high
priority for a country. The disaster management plans develop and nur-
ture the culture of safety and integration of disaster prevention, control
and mitigation into development process. For this purpose, the Public
Liability Insurance Act, 1991 was passed to provide immediate and
inexpensive relief to the disaster victims. Later on, the recommendation
of the High Power Committee on Disaster Management, the Disaster
Management Act, 2005°%* was passed by the Indian Parliament to meet
the challenges in case of any disaster, man-made or natural. The Act
has mandated the creation of National Disaster Management Authority,
with Prime Minister, as its Chairman. Further, the Central Government

65:-S: 2:
66. A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718.
67. The disaster may be man-made or natural disasters. Flood, famine Tsunami, Katrina,
Rita, earthquakes are natural calamities or natural disasters. Bhopal Gas Disaster,
Chernobyl Atomic Plant Disaster, fire in oil wells, spill of oil in sea are some of the
examples of man-made disasters.
68. It was passed on 26-12-2005.
5] ENVIRONMENTAL POLLUTION & CONTROL UNDER OTHER LAWS I2I

has also come out with National Policy on Disaster Management in

November 2009. It is very comprehensive document enumerating every
aspect of holistic management of disaster in the country including insti-
tutional and legal arrangement, disaster prevention, mitigation and pre-
paredness, techno-legal regime, reconstruction and recovery, knowledge
management and research and development.
The Supreme Court of India has also asserted that disaster manage-
ment is a part of the right to sustainable development® and that this
cannot be separated from sustainable development”. In M.C. Mehta v.
Union of India (Oleum Gas Leakage case)’'!, the Supreme Court laid
down the “principle of absolute liability” of a person/industry, in case
one deals in hazardous substance. It also declared that such a person
has a “non-delegable duty” for the same. It also laid down duties of the
entrepreneur to reduce hazards, prevent disaster, emergency measures to
be adopted, on the site and of the site emergency planning and mitigating
measures in case of happening of the disaster.

69. Tehri Band Virodhi Sangarsh Samiti v. State of U.P., 1992 Supp (1) SCC 44.
70. N.D. Jayal v. Union ofIndia, (2004) 9 SCC 362.
71. (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
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 .

CHAPTER 6
The Environment
(Protection) Act, 1986!

Unbridled use of science and unprecedented use of technology have given

birth to many problems including the problem of eco-imbalances and
environmental degradation. With the advancement of science and tech-
nology, this problem has assumed threatening dimensions. This problem
has not only caused damage to flora and fauna but threatened the very
existence of mankind. It has rightly been observed:
Human survival is menaced by another equally homicidal missile euphemisti-
cally described as Environmental Pollution. If |may mint an odd expression,
‘thanatology through technology’ is the Frankenstein’s monster that science
and industry, by promising global progress, have created. If dehumanized
industrialization, with all its profit-hungry vulgarity and its ecological insen-
sitivity, invade Nature with enlightened resistance from society and persons
or depletes all the resources of land, water and air, the crucifixion of human-
ity is a certainty and the resurrection of the race a lost possibility unless
we begin the battle for human values against ‘barbarity incorporated’, right
now. Today is right; tomorrow may be too late ... we have guided missiles
and unguided men.’
Everyday there is a new problem about the degrading environment, dep-
redated earth, traumatic subversion of the ecosystem, poisoning of air,
water and food, and technological plunder of the resources of nature.
That is why environmental hygiene is a very urgent problem of mankind.
Its solution and immediate adoption of remedial measures would save
nature, and failure or inordinate delay to adopt such measures could
mean the destruction of natural environment. The seriousness of the
problem is now evident from the fact that all the countries —develop-
ing and developed—and their scientists, economists, policy-makers and

1. Received assent of the President on 23-5-1986 and published in the Gaz. of India,
Extra., Pt. II, S. 1, dt. 26-5-1986, 1-11.
2. Krishna lyer J, Environmental Pollution and Legislative Solutions (1984) 1.
124 ENVIRONMENTAL LAW [CHAP.

degrading environ-
administrators have started giving serious thought to
land pollution and
ment and eco-imbalances. Moreover, the air, water,
which led
radiation have led to the contamination of food with chemicals
an end
the scientists to believe that the bacteriological era has come to
and the new era, called the chemical era, has set in. | |
The problem of the protection of water resources from pollution with
oil and metal, organic chlorine compounds, radioactive waste and var-
ious other toxic substances is also a threat to aquatic life of a country,
particularly a country which has a long coastline or other water bodies
like India.
To meet these challenges to mankind, various measures have been
adopted in India including legal measures. Many laws have been passed
by the Indian Parliament and the State Legislatures to contain and control
the problem of air, water, land, radiation pollution and eco-imbalances.
These laws include the Wildlife (Protection) Act, 1972; the Water
(Prevention and Control of Pollution) Act, 1974; the Water (Prevention
and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act,
1980; the Air (Prevention and Control of Pollution) Act, 1981 and the
Environment (Protection) Act, 1986.

1. OBJECTS AND REASONS

The Environment (Protection) Act was passed with a foreign background
and to fulfil constitutional obligation as provided under Article 48-A.°
The Act was passed to fulfil the obligation as provided under the
Stockholm Declaration of 1972. It was an International Conference
on Human Environment held at Stockholm (5-16 June 1972), attended
by more than 130 nations. This declaration came out with 26 princi-
ples which are known as the Magna Carta on Human Environment. It
was suggested by the Stockholm Declaration of 1972 that governments
must evolve necessary laws to protect and improve the flora and fauna,
non-renewable resources, wildlife and human health. It was further pro-
vided that “appropriate national institutions must be entrusted with the
task of planning, managing or controlling the 9 environmental resources
of States with a view to enhancing environmental quality”.* India was
also one of the signatories to the declaration.
The Objects and Reasons’ as provided by the Act are as follows:
Concern over the State of environment has grown the world over since
the sixties. The decline in environmental quality has been evidenced by
increasing pollution, loss of vegetal cover and biological diversity, excessive

3. Art. 48-A: “The State shall endeavour to protect and improve the environment and
safeguard forests and wildlife of the country.”
4. Principle 17, Stockholm Declaration, 1972.
5. Gaz. of India, Extra., Pt. Il, $. 2, dt. 7-5-1986.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 125

concentrations of harmful chemicals in the ambient atmosphere and in food

chains, growing risks of environmental accidents and threats to life support
systems. The world community’s resolve to protect and enhance the environ-
mental quality found expression in the decisions taken at the United Nations
Conference on Human Environment held in Stockholm in June 1972.
Government of India participated in the Conference and strongly voiced the
environmental concerns. While several measures have been taken for envi-
ronmental protection both before and after the Conference, the need for a
general legislation further to implement the decisions of the Conference has
become increasingly evident.
Although there are existing laws dealing directly or indirectly with several
environmental matters, it is necessary to have a general legislation for envi-
ronmental protection. Existing laws generally focus on specific types of pol-
lution or on specific categories of hazardous substances. Some major areas of
environmental hazards are not covered. There also exist uncovered gaps in
areas of major environmental hazards. There are inadequate linkages in han-
dling matters of industrial and environmental safety. Control mechanisms to
guard against slow, insidious build-up of hazardous substances, especially
new chemicals in the environment, are weak. Because of a multiplicity of
regulatory agencies, there is need for an authority which can assume the lead
role for studying, planning and implementing long term requirements of envi-
ronmental safety and to give direction to, and coordinate a system of speedy
and adequate response to emergency situations threatening the environment.
In view of what has been stated above, there is an urgent need for the
enactment of a general legislation on environmental protection which, inter
alia, should enable coordination of activities of the various regulatory agen-
cies, creation of an authority or authorities with adequate powers for environ-
mental protection, regulation of discharge of environmental pollutants and
handling of hazardous substances, speedy response in the event of accidents
threatening environment and deterrent punishment to those who endanger
human environment, safety and health.
The Bill seeks to achieve the above objects.

CHAPTER I
Preliminary
1. Short title, extent and commencement.—(t1) This Act may be called the
Environment (Protection) Act, 1986.
(2) It extends to the whole of India.
(3) It shall come into force on such [date]*® as the Central Government
may, by notification in the Official Gazette, appoint and different
dates may be appointed for different provisions of this Act and for
different areas.
The Environment (Protection) Act is a special law and extends to the
whole of India—it was passed in March 1986 and came into force on
19 November 1986.
6. Vide GSR 1198(E), dt. 12-11-1986. It came into force on 19-11-1986.
 126 ENVIRONMENTAL LAW [CHAP.
4 2

The Supreme Court in M.C. Mehta v. Kamal Nath’ (Kamal Nath

case), observed:
The industrial revolution brought an awakening among the men inhabiting
this Earth that nature, with all its resources was unlimited and forever renew-
able. The uncontrolled industrial development generating tonnes of indus-
trial waste disturbed the ecological balance by polluting the air and water
which in turn, had a devastating effect on wildlife ... . The United Nations,
therefore, held a conference on human environment at Stockholm in 1972.
In the wake of the resolutions adopted at the conference, different coun-
tries at different stages enacted laws to protect the deteriorating condition of
environment. Here in India, the legislature enacted three Acts, namely, the
Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention
and Control of Pollution) Act, 1981 and the Environment (Protection) Act,
1986. ... Under these Acts, rules have been framed to give effect to the pro-
visions thereof.
Article 48-A of the Constitution also imposes a constitutional obligation
on the “State” including courts to protect and improve the environment,
including forests and wildlife.* It was also clarified by the court that by
obeying this provision, social and economic justice shall be observed by
the State.? Therefore, to give effect to Article 48-A, the Environment
(Protection) Act was passed by the Indian Parliament.
The Act consists of 26 sections divided into four chapters. Seven sched-
ules dealing with emission standards of air, noise, effluents, etc., have
been appended to it. Various rules including the Environment (Protection)
Rules, 1986 have also been provided by the Indian Parliament with it.
They are as follows:
1. Environment (Protection) Rules, 1986
2. Hazardous Wastes (Management, Handling and Transboundary
Movement) Rules, 2008
1S) Hazardous Micro-organism Rules, 1989
4. Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989
wn" Chemical Accidents (Emergency Planning, Preparedness and
Response) Rules, 1996
6. Bio-Medical Waste (Management and Handling) Rules, 1998
7. Municipal Solid Wastes (Management and Handling) Rules, 2000
8 . Plastics Waste (Management and Handling) Rules,
2011
o . Noise Pollution (Regulation and Control) Rules, 2000
to. Ozone Depleting Substances (Regulation & Control)
Rules, 2000
tr. Batteries (Manufacture and Handling) Rules, 2001

7. (2000) 6 SCC 213: AIR 2000 SC 1997, 1999.

8. M.C. Mehta v. Kamal Nath, (2000) 6 SCC
213; T. Damodar Rao v. Municipal
Corpn. of Hyderabad, AIR 1987 AP i
9. Nature Lovers Movement v. State of Kerala, AIR
2000 Ker 131, 143.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 127

2. ECOLOGY
Since the terms “environment” and “ecology” are used interchangeably,
distinction must be made between the two.
The term “ecology” has been derived from the Greek word “oikos”
which means “a place to live”.'° Therefore, most of the ecologists define
“ecology as the study of the relationship of an organism or a group of
organisms with their environment”. Odum defines “ecology” as “the
study of the structure and function of nature”.'' He was of the opinion
that ecologists mainly study the biology of groups of organisms and their
functional process only. This does not deal with abiotic, their structure
and functions, etc. Ernst Haeckel, who is known to be the founder of
ecology, developed the terminological form and defined “ecology” as
a study of reciprocal relations between organisms and their surround-
ings’” (he used the term oecology instead of ecology). Thus, ecology, as
a science, is not very old, moreover only 140 years old. Besides, ecology
arose as the science of the system of the mutual relations of organisms
and communities of organisms with one another and with their environ-
ment or habitat. Similarly, “human ecology” is also new, only 60 years
old. Human ecology, as a whole, studies interaction between people and
environment. “Human ecology is an integrating movement founded on
the proposition of interdependence between competing groups, between
mankind and all other forms of life and between the mental and physical
activities of human beings.” Because it is true to say that the environ-
ment has been affected by man’s activities since time immemorial, in the
words of Philip Stewart of Oxford University, “a complete human ecol-
ogy needs to include an account of the geographical, social, economic,
military—and cultural—conditions that make for the expansion and
decline of different cultures ... .”
In the words of Bookchin:'*
... ecology deals with the dynamic balance of nature with the interdepend-
ence of living and nonliving things. Since nature also includes human beings,
the science must include humanity’s role in the natural world — specifically,
the character, form, and structure of humanity’s relationship with other
species and with the inorganic substrate of the biotic environment. From
critical point, ecology opens to wide purview the vast disequilibrium that
has emerged from humanity’s split with the natural world. One of Nature’s
very unique species, homo sapiens, has slowly and painstakingly developed
from the natural world into a unique social world of its own. As both worlds

10. Reiter coined the term ecology in 1865.

11. E.P. Odum, Fundamentals of Ecology (1971).
12. Ernst Haeckel, “Uber Entwicklungsgang und Aufgabe der Zoologie”, gehalten bein
Eintritt in die Philosophische Fakultat Zu Jena am 12-1-1869. Jenaische Zeitschrift
fur Medizin und Naturwissen schaft (1870) 5, 365.
13. M. Bookchin, The Ecology Freedom (Cheshire, 1982) 21.
 |CHAP.
y o]

128 ENVIRONMENTAL LAW

1t sa
‘nteract with each other through highly-complex phases of evolution,
of a natura
become as important to speak of a social ecology as to speak
ecology.
Such studies clearly show that there are divergent branches of ecology
from study point of view, such as scientific or natural ecology which
studies the relationship between organisms and their environment and
human or social ecology which deals with the interrelationship of humans
with their environment.'* Similarly, various problems of ecology have
been studied under the titles “deep ecology” and “shallow ecology”.””
As a sequel to this, the term “ecosystem” also needs explanation. It
has been defined by Encyclopaedia Britannica” as:
A unit that includes all organism (biological factor) in a given area inter-
acting with environment (physical factors) so that a flow of energy leads to
a clearly defined trophic (nutrient requiring) structure, biotic diversity, and
the material cycle (i.e. exchange of material) between living and non-living
sectors.
According to Monkhouse and Small, ecosystem is “an organic commu-
nity of plants and animals viewed within its physical environment or
habitat”’’.

3. ECOSYSTEM
The term ecosystem was coined in 1930 by Roy Clapham to mean the
combined physical and biological components of an environment.'* This
term was defined by British ecologist Sir Arthur G. Tansley'’ in 1935 as,
“The whole system, ... including not only the organism-complex, but
also the whole complex of physical factors forming what we call the
environment.” He regarded ecosystems not simply as natural units, but
as mental isolates. According to Eugene Odum, a founder of ecology:
Any unit that includes all of the organisms (i.e. the ‘community’) in a given
area interacting with the physical environment so that a flow of energy leads
to clearly defined trophic structure, biotic diversity, and material cycles (i.e.

14. R. Elliot & Gare, Environmental Philosophy (Queensland Univ Press, 1983) 11;
Wittman, Selected Articles in Social Ecology (MSS Info. Crop., NY 1973); Moos,
RH, Insel, P.M., Issues in Social Ecology: Human Milieus (National Press Books
1974).
15. Shallow Ecology reflects the idea that humans can control and manage the physical
world, and Deep Ecology takes a broader view and studies environment from the
perspective of the universe and the earth where humans are only one element in
the system. Elliot & Gare, Ecophilosophy I, II, III and IV, George Sessions, Sierra
College, Rocklin, California (1979-1982).
16. Encyclopaedia Britannica, Vol. II (1980) 780.
17. Monkhouse and Small, A Dictionary of Natural Environment, 38.
18. Roy Clapham, The Biology of Flowers (Clarendon Press, Oxford 1935).
19. A.G. Tansley, The Use and Abuse of Vegetational Terms and Concepts (1935)
Ecology 16(3): 284-307. doi: 10.2307/19,30,070. JSTOR 19,30,070. £
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 129

exchange of materials between living and non-living parts) within the system
is an ecosystem.*° [It is also said:]
[A]n ecosystem is a biological environment consisting of all the organisms
living in a particular area, as well as all the nonliving, physical components
of the environment with which the organisms interact, such as air, soil, water
and sunlight.*!
Thus, ecosystem of an area includes biotic (living community), forest,
grassland, trees, animals and abiotic (non-living) components of environ-
ment such as soil, air, mountains, and water of an area.

3.1 Structure and function of an ecosystem

An ecosystem consists of biotic and abiotic substances. The biotic sub-
stances include the following:

1. Producers.— They produce food for themselves and others. They

are green plants and are able to manufacture food from simple inorganic
substance. Chemosynthetic bacteria, photosynthetic bacteria, algae of
various types, shrubs, grasses, mosses, herbs and trees contribute in pro-
duction of an ecosystem.
2. Consumers.—These are the heterotrophic organisms. They eat
other organisms or organic matter. They are chiefly animals known as
“micro consumers”.
3. Decomposers.—They breakdown the complex compounds of dead
protoplasm, absorb some of the products and releases simple substances
which are again usable by producers. They are also called as “micro
consumers”.

3.2 Functions of ecosystems

There are mainly two components of an ecosystem from the functional
point of view. They are:
1. Autotrophs.—They make their own food, they are known as
self-nourishing organisms. Autotrophs fix light energy using simple
inorganic substances and build up of complex substances predominates.
Green trees, photosynthetic bacteria, etc., belongs to this category.
2. Heterotrophs.—They cannot make their own food and are depend-
ent on producers for food. Since they depend on the material produced
by others, they are known as consumers.

20. E.P. Odum, Fundamentals of Ecology (3rd Edn., Saunders New York 1971) .
21. Neil A. Campbell, “Biology Concepts and Connections” (6th Edn. 2009) 2, 3 and
G-g. Retrieved 2010-06-14.
 |CHAP.
130 ENVIRONMENTAL LAW

3.3 Ecological succession

It is a gradual process incurred by the change in the number of indi-
viduals of each species of a community and by establishment of new
species populations that may gradually replace the original inhabitants.
Some species may become more abundant and invade the other species.
Succession may be initiated either by formation of new, unoccupied hab-
itat (e.g., a lava flow or a severe landslide) or by some form of disturbance
(e.g., an abandoned crop field or cut-over forest, or natural forces such as
water, wind storms, and floods). Previous one is known as “primary suc-
cession” and the second one is known as “secondary succession”. Thus it
is a process of change in the original vegetation. Area is rapidly colonised
by a variety of both plant and animal species that subsequently modify
one or more environmental factors also.

3.4 Food chain, food web and the ecological pyramid

“Food chain”? is an aspect of nature where energy passes from one living
organism to another. Often, a plant will begin a food chain because it
can make its own food. Consumers are animals that eat producers or
other animals. Animals that eat grass become primary consumers and if
that animal is eaten, the animal eating the primary consumer is known
as secondary consumer. Thus, energy passes from one trophic level (pro-
ducer— grass, shrubs, etc.) to the next trophic level (consumer— ani-
mals birds, mankind, etc.). Food chain also includes decomposers who
eat the dead animals/birds. Grass is eaten by animals, small insects are
eaten by birds, small animals by big animals, and animals and birds by
man. Thus, energy circulates through this chain. The food chain can be
grazing food chain, terrestrial food chain, and detritus food chain.
“Food web” is a network of food chains which are interconnected
at various trophic levels as to form a number of feeding connections
amongst different organism of a biotic community. For example, rabbit
eats grass and rabbit is eaten by the lion, grass is eaten by grasshopper,
grasshopper is eaten by lizards, and lizard is eaten by a hawk. If the food
chain is disrupted due to human activity like poaching or prey, which
results in loss or extinction of a species, the food web is broken down.
A food chain is one particular route through a food web. Thus it can
be summarised as “a network of food chains or feeding relationships
by which energy and nutrients are passed on from one species of living
organisms to another”?>.

22. Charles Elton pioneered the concept of food cycles, food chains, and food size in his
classical book, Animal Ecology (1927).
23. <http://www.businessdictionary.com/definition/food-web.html>.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 131

3.4.1. Ecological pyramid

An ecological pyramid is a graphical representation designed to show the
biomass” or biomass productivity at each trophic level in a given ecosys-
tem. Ecological pyramids begin with producers on the bottom (such as
plants, green plants) and proceed through the various trophic levels (such
as, herbivores that eat plants, then carnivores that eat herbivores, then
carnivores that eat those carnivores, and so on).

Tertiary consumer

Secondary consumer

Primary consumer
food
of
levels
chain
Increasing

Producers

Ecological pyramid definition

It is also known as “eltonian pyramid” as it was first devised by British

ecologist Charles Elton in 1927. Producers and animals are in abundance
at the base of pyramid and there is progressive decrease on ascendency
or on the top of it.

3.5 Kinds of ecosystem

Basically there are two types of ecosystem: 1) terrestrial ecosystem,
and 2) aquatic ecosystem. Besides these two, there is man-made or
man-engineered ecosystem. First two (terrestrial ecosystem and aquatic
ecosystem) are known as natural ecosystem.

3.5.1 Terrestrial ecosystem

As the title shows, this type of ecosystem includes forest, grassland and
deserts.
24. Biomass is the amount of living or organic matter present in an organism.
 132 ENVIRONMENTAL LAW |CHAP.
" >

3.5.1.1 Forest ecosystem

Forest ecosystem means and includes the entire assemblage of forest
organisms (trees, shrubs, herbs, bacteria, fungi, and animals, including
people) together with their environmental substrate (the surrounding
air, soil, water, organic debris, and rocks), interacting inside a defined
boundary. Forests and woodlands occupy about 38 per cent of the earth’s
surface, and they are more productive and have greater biodiversity than
other types of terrestrial vegetation. Forest grows in wide variety of cli-
mates. The type of forest in a given place results from a complex set of
factors, which include frequency and type of disturbances, seed sources,
soils, slope and aspect, climate, seasonal patterns of rainfall, insects and
pathogens, and history of human influence in that area.
It is an accepted fact that 33 per cent land must be covered by trees as
they are inseparable for further existence of our life. Forests also serve
as home of many species. Deforestation has also caused global warming.
India has about 19.27 per cent of the geographic area.” It has many types
of forests,*® like coniferous forest (found in Himalayan region), evergreen
forests (Western Ghats forests, North-East India, Andaman and Nicobar
forests), deciduous forests (found in regions with moderate rainfall; trees
shed their leaves during hot summer and winter), thorn forests (found
in semi-arid region, western part of India, Rajasthan) and mangroves
(found along coastal areas especially in the river deltas, like Sunder for-
ests of West Bengal).

3.5.1.2 Grassland ecosystem

Grasslands” are found in regions that are too dry for forests but have
sufficient soil water to support a closed herbaceous plant canopy that is
lacking in deserts. Thus, temperate grasslands usually develop in areas
with 10-40 inches rainfall (25-100 cm) of annual precipitation, although
tropical grasslands may receive up to 60 inches (150 cm). Grasslands
are found primarily on plains or rolling topography in the interiors of

25. <http://www.wild-India.com/habitates/forest.html>.
26. Major division of the forests of the world are: tropical rain forests, temperate
decidu-
ous forests, coniferous forests, the temperate forests, the sub-tropical forests,
tropical
moist forests, tropical dry forest.
27. An area that is dominated by grass or grass like vegetation. Moderately
dry climatic
conditions and seasonal disturbances, such as floods or fires, are genera
lly condu-
cive to the growth of grasses and prohibitive of that of trees and shrubs.
Grasslands
are found in tropical, subtropical, and temperate regions and
typically occupy
regions between forests and deserts. In The American Heritage®
Science Dictionary
Copyright © 2005 by Houghton Mifflin Company, published
by Houghton Mifflin
Company.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 133

great land masses. Thus, a biological community that contains few trees
or shrubs is characterised by mixed herbaceous (non-woody) vegeta-
tion cover, and is dominated by grasses or grass like plants. Savanna
grassland (all pasture land) of Africa, South America and Australia are
the best examples. The European meadows cross the subcontinent, and
the Eurasian steppe ranges from Hungary eastward through Russia
to Mongolia; the pampas cover much of the interior of Argentina and
Uruguay. Within the grassland, ecosystem are of enormous number of
very small organisms, including bacteria, fungi, algae, and viruses. They
are important as they decompose organic material, release carbon diox-
ide and other gases into the atmosphere and make nutrients available for
recycling. Bacteria and some algae also capture nitrogen from the atmos-
phere and fix it into forms available to plants.
Grasslands and deserts are the most neglected area but it is an impor-
tant part of biodiversity conservation in India. Protection, development
and sustainable use of grasslands are very important for the rural econ-
omy and livestock. India has more than 500 million livestock, more than
50 per cent of the fodder for this livestock comes from grasslands. Many
natural grasslands’ (e.g., wet grasslands of terai, shola grasslands of the
Western Ghats, dry grasslands of Deccan) have been converted to plan-
tations, sometimes even in protected areas. Some of the most threatened
species of wildlife are found in the grasslands and deserts (e.g., Great
Indian Bustard, Lesser Florican, Indian Rhinoceros, Snow Leopard,
Nilgiri Tahr, Wild Buffalo, etc.). Despite the importance of grasslands
and deserts for biodiversity conservation, livestock dependency and for
poverty alleviation, there is no national grassland development and graz-
ing policy in India. It is also to be noted that grasslands are “common
property”, therefore, they are not well managed.
These grasslands are very useful as they help to maintain the carbon
cycle, transfer of carbon from atmosphere into plants through various
animals and microorganism, and back to the atmosphere. They are use-
ful as they provide grazing area for cattle, fodder, fuel wood, and help in
nitrogen fixation.
Most of grassland systems have been modified and damaged by
human activities. Overgrazing and fire are the main culprits for this deg-
radation and deterioration of grasslands. With the disappearance/shrink-
ing of grazing land, many grassland species have disappeared or are on
the verge of extinction. Some of them are bustard, cheetah, blackbucks,
chinkara, wolf and various species of cattle.

28. Kinds of grasslands in India are Himalayan pasture, terai, semi-arid grasslands of
Western India, Central India and the Deccan, Shola grassland (found in Western
Ghats, Nilgiri and Annamalai Ranges).
 |CHAP.
134. ENVIRONMENTAL LAW

3.5.1.3, Desert ecosystem

precipitation
The desert can be defined as a region where average annual
on. Deserts
seldom exceeds the amount of water lost to evapotranspirati
-arid
are barren land with scanty or no vegetation. They are also semi
ts:
areas. Climate is very dry in these areas. There are two types of deser
Sahara,
1) hot deserts, and 2) cold deserts. Thar desert in Rajasthan,
Kalahari and Gobi in Africa, Australian desert are the examples of hot
in
desert; and Antarctica, Tundra South Antarctica, Greenland, Ladakh
India are examples of cold desert. Both have extreme climates.
Great and Little Rann of Kutch are also known as semi-arid areas and
are part of desert. Camel, great bustard, cattle, wild ass and goats and
sheep are animals found in these areas. Because of extreme climate, they
are sparsely populated.
There is a pressing need that such ecosystem must be controlled and
developed. The Indira Gandhi canal is a laudable step to check desertifi-
cation. Destruction of species of flora and fauna must also be protected
and preserved.

3.5.2 Aquatic ecosystem

Aquatic ecosystem means where plants, animals and their physical envi-
ronment interact in water. It has also been defined as:
An aquatic ecosystem is an ecosystem located in a body of water. Communities
of organisms that are dependent on each other and on their environment live
in aquatic ecosystems. The two main types of aquatic ecosystems are marine
ecosystems and freshwater ecosystems.”’
Marine ecosystems”*° cover approximately 71 per cent of the earth’s
surface and contain approximately 97 per cent of the planet’s water and
generate 32 per cent of the world’s net primary production. Seawater has
an average salinity of 35 parts per thousand (ppt) of water, as approxi-
mately 85 per cent of the dissolved materials in seawater are sodium and
chlorine. The Indian Ocean, Bay of Bengal, the Arabian Sea constitutes
marine ecosystem of Indian peninsula. Many types of fishes, turtles,
marine mammals, sea-weeds are the products of this ecosystem. Similarly,
the shallow area near Kutch and area around Andaman and Nicobar
Islands are significant depositories of coral reefs in the world. The salin-
ity varies among different marine ecosystems. Environmental problems
concerning marine ecosystems include unsustainable exploitation of

29. David E. Alexander, Encyclopedia of Environmental Science (Springer 1999).

30. Three types of freshwater ecosystem: 1) Lentic: slow-moving water, including pools
ponds, and lakes. 2) Lotic: rapidly-moving water, for example streams and rivers. f
Wetlands: areas where the soil is saturated or inundated for at least part of the time.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 135

marine resources (e.g., over-fishing of certain species), marine pollution,

climate change, and buildings on coastal areas.
“Freshwater ecosystems” cover 0.8 per cent of the earth’s surface and
contain 0.009 per cent of its total water. They generate nearly 3 per cent
of its net primary production. These include rivers, lakes, ponds, streams
and artificial water bodies. Aquatic ecosystems perform many important
environmental functions as they recycle nutrients, purify water, attenuate
floods, recharge groundwater and provide habitats for wildlife. Physical,
chemical or biological alterations of the aquatic ecosystem has caused
stress on this ecosystem. Various human activities have damaged it and
such human activities include dumping of toxic waste, atomic waste, oil
spill, warfare activities, municipal solid waste and construction activities.

3.6 Ecology and environmental science: distinction

The terms ecology and environmental science should not be taken as one
and the same. On many occasions, environmentalists are considered as
ecologists, but this is not true. One who is “interested in and concerned
about the environment is an environmentalist” whereas “ecology” is one
of the disciplines constituting the core of environmental science. Ecology
also consists of many sub disciplines, for example, aquatic ecology, desert
ecology, radiation ecology, etc.
According to Purdom and Anderson:
while other disciplines can also study the interactions of life and the envi-
ronment, ecologists are concerned about what limits life, how living things
use resources such as minerals and energy, and how living things interact.
Ecology is the study of these processes; environmental science is the applica-
tion of this knowledge to managing the environment.”
Similarly, the small region of the earth where all elements needed to sup-
port life are present, is known as the “biosphere”. “It is an area near the
earth’s surface where all living organisms are found including portion of
hydrosphere, atmosphere and crust.” And within this biosphere, there
are functional units known as “ecosystem” which consists of all living
organisms plus non-living components and their interaction with each
other. Deserts, forests, lakes, oceans, etc., are the examples of ecosystem.
They are affected with the surrounding biosphere. Thus, there is always
interaction between the ecosystem and its surrounding biosphere. In this
sequel, it can be said that man’s total “environmental system” includes
not only the biosphere but also his interaction with his “natural” and
“man-made” surroundings.

31. Purdom and Anderson, Environmental Science (2nd Edn., Charlie EM Pub. Co.,
London 1983) 4.
 136 ENVIRONMENTAL LAW |[CHAP.

3.7 What is “environment”?

“Environment”, “environmentalist”, “environmentalism” have become
the buzzwords, nowadays, in every society. Moreover, everyone is con-
cerned about keeping the environment clean and checking environmental
degradation.
The term environment has been derived from the term “environ”,
which means “to surround”, French term “environner”, Latin “in-viron”.
Thus, etymologically environment means “surrounding conditions, cir-
cumstances affecting people’s life”.*? Several attempts have been made by
writers, jurists, commentators, legislatures, etc., to define it.
McGraw-Hill Encyclopaedia of Environmental Science defines envi-
ronment as “the sum total of all conditions and influences that affect the
development and life of organisms”. It seems that it is quite a comprehen-
sive definition as it “stresses in totality”.
According to Gilpin, environment “from a scientific point of view is
taken to mean everything that is physically external to the organism;
organisms of course include human beings”.*?
P.N. Bhagwati J has made the term environment more clear and sim-
pler to understand. He opines, “the term refers to the conditions within
and around an organism, which affect the behaviour, growth and devel-
opment, or life processes, directly or indirectly. It includes the conditions
with which the organism interacts.”**
The Supreme Court in T.N. Godavarman Thirumulpad v. Union of
India* declared:
‘Environment’ is a difficult word to define. Its normal meaning relates to the
surroundings, but obviously that is a concept which is relatable to whatever
object it is which is surrounded. Einstein had once observed, ‘the environ-
ment is everything that is not me’.
Acharya G.L. Amar explains the term rather than defining it. He says,
“environment may be called in a couple of words ‘surrounding objects’ or
‘surrounding circumstances’; internal (biological), external (ecological),
physical, cultural, etc. may be the branches of environmental studies.”
He further opines, “ecology could be a study of plants, or of animals, or
of people and institutions in relation to environment.”

32.P.H. Collins, Dictionary of Ecology and the Environment (1990) 62.

33. A. Gilpin, Dictionary of Environmental Terms (Queensland Univ Press)
51.
34. P.N. BhagwatiJ, “The Crucial Conditions” in Survey of the Envir
onment (The
Hindu 1991) 165.
35. (2002) 10 SCC 606: AIR 2003 SC 724.
36. Acharya G.L. Amar, “Jainism and the Environmental Harmony”
in O.P. Dwivedi
World Religions and the Environment (1989) 209.
,
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 137

Some have defined it as:

our physical and biological system in which man and organisms live as a
whole and these system have many interacting components. These compo-
nents of the environment generally include rocks, minerals, soils, and water,
its lands and their present and potential vegetation, its animal life and poten-
tial for livestock husbandry, and its climate.*”
Keeping this in view, it can rightly be said that “environment which
surrounds us... consists of plants, animals and non-living objects as
water, air, light, soil, temperature and micro-organism present in the
nature, etc.” Therefore, any damage to any of them is to cause damage
to the environment. It is truly said that there is a close as well as com-
plicated interaction amongst these various components which maintain
a kind of equilibrium in nature which is termed as “ecological balance”.
Similarly, Maurice F. Strong, erstwhile Secretary General of the UN ina
Conference on Human Environment, opined:
The basic issue posed by the environmental crisis is how man is to manage the
world’s first technological civilization in which he has the power to shape his
own future—the power to create and the power to destroy ... . It is impor-
tant to emphasize that in using the phrase ‘The Human Environment’, it is
necessary to include all elements, both natural and man-made. It embraces
urban and rural poverty as well as the dangers of atmospheric pollution from
automobiles and factories. It includes the discovery and development of nat-
ural resources as well as the efficient and wasteful use of presently exploited
resources. It covers air, water and soil. It includes the methods by which good
production can be increased.

3.8 Definitions [S. 2]

It is for the first time in the world that technical definitions have been
provided by the Act to various terms of the environment including the
term “environment”. The National Environment Protection Act, 1969 of
the US and the Pollution Control Act, 1974 of the UK, though the earliest
and comprehensive enactments did not define these technical terms.

3.8.1 Environment
Environment (Protection) Act, 1986 is the first statute in the history
of environmental law which has defined the term “environment”.
Section 2(a), Environment (Protection) Act provides:
‘Environment’ includes water, air and land and the inter-relationship which
exists among and between water, air and land, and human beings, other liv-
ing creatures, plants, micro-organism and property.
According to Section 2(a), environment 1) includes water, air and
land; and 2) the interrelationship which exists among and between
37. The State of World Environment, UNEP: Annual Review (1980) 6.
 CHAP.
138 ENVIRONMENTAL LAW

tures, f) plants,
a) water, b) air, c) land, d) human beings, @) living crea
g) micro-organisms, and h) property.
inanimate objects and their
Thus, it includes animate and
interrelationship. .
. It is a
The above definition defines environment as a unitary entity
of
wider definition which embraces all biotic and abiotic components
environment. Some writers have opined that it has failed to comprehend
the modern concept of environmental pollution and the factors which
lead to the imbalance of the ecosystem. The accent is on the physical con-
dition of air and water. The major urban environmental ills like noise,
traffic, overburdened mass transportation system, slums and congestion
are conspicuously absent from the Act.** But it is to be appreciated that
it is a maiden attempt to define “environment” and implicitly includes
them all.
In Virender Gaur v. State of Haryana*’, the Supreme Court declared
that “the word ‘environment’ is of broad spectrum which brings within
its ambit ‘hygienic atmosphere and ecological balance’”.
+)

3.8.2 Environmental pollutant

2. Definitions.—In this Act, unless the context otherwise requires, —...
(b) “environmental pollutant” means any solid, liquid or gaseous sub-
stance present in such concentration as may be, or tend to be, injuri-
ous to environment.
Any substance in any form—whether in the form of liquid, gas or
solid —if injurious to any component of the environment, i.e. land, air,
water, plant, microorganism, human being or property, or which is likely
to harm them will be named as environmental pollutant. Solid particu-
late material and gases are already in the air, but if the concentration of
these reaches a level which affects adversely the health of human beings,
animals or plants, it will be environmental pollution. In M.C. Mehta v.
Union of India*® (Taj Trapezium case), the emission of sulphur dioxide
from the use of coal and diesel by industries was found to be 200-300
ug/m3, 7.e. to folds of the standards fixed by the Central Pollution Control
Board. And this sulphuric dioxide—in the form of “acid rain” —was
causing yellowing and corrosion of the marble of the Taj Mahal. It was
gaseous pollution. Similarly in Vellore Citizens’ Welfare Forum v. Union

38. Jayakumar, Environment Act, “A Critical Overview” in P. Leelakrishnan, Law

and Environment (Eastern Book Co. 1992) 235. In Hinch Lal Tiwari v. Kamla
Devi, (2001) 6 SCC 496: AIR 2001 SC 3215, the Supreme Court stated that mate-
rial resources of the community like forests, tanks, ponds, hillocks, mountains,
etc., maintain delicate ecological balance. They must be protected for a proper and
healthy environment (decided on 27-5-2001)
39. (1995) 2 SCC 577.
40. (1997) 2 SCC 353: AIR 1997 SC 734.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 139

of India*! (Vellore Citizens’ Welfare Forum), untreated effluents from

tanneries, consisting of various types of chemicals including sodium
chloride, lime, sodium sulphate, chromium sulphate, ammonia, sulphu-
ric acid besides dyes, changed.
the physico-chemical properties of the soil
and contaminated the underground water by percolation and was held to
be environment pollution, as the drinking water of 350 wells of the area
also got polluted from it.
Noise has also been recognised as a pollutant, though Section 2(b) has
not mentioned it specifically as a pollutant, but Section 6(2)(b) refers to
it. Further, by an amendment in 1987, the Air (Prevention and Control
of Pollution) Act, 1981 under Section 2(a) mentioned “noise” as one
of the pollutants of air. Thus, it is a part of atmospheric pollution as
such— “Noise pollution has already crossed the danger point and noise
like a smog is threatening as a slow agent of death.” Noise, if it crosses
permissible limits, becomes an environmental pollutant. Because of the
high pitch of noise—noise beyond 65 decibels (dB) or more than roodB,
would be intolerable and affects the health of humans and animals
adversely.*” Noise is a pollutant when it becomes undesirable, unwanted
or unpleasant. It is now a potent environmental pollutant.

3.8.2.1 Air pollutants

Smoke, vapour, carbon monoxide, noise, hydrocarbons, nitrogen oxides,
suspended solid particulates, temperature, chlorine, oleum, methyl isocy-
anate, ammonia, rodenticides, pesticides, fly ash, steam, sprays, cement,
asbestos, suspended solids and others are known as air pollutants.

3.8.2.2 Land pollutants

Biomedical wastes; hazardous wastes; untreated effluents of chemical
industries; household wastes; oil, grease, pesticides, rodenticides, fun-
gicides; tannery effluents; waste water discharge from paint industry;
inorganic chemicals; waste water from tie and dye industry; effluents
or wastes from slaughter houses, seafood products, food and fruit-pro-
cessing industry; confectionery, pulp and paper news effluents; organic
chemicals manufacturing industry; pharmaceutical industry; soda ash
industry effluents; coal washeries; dairy wastes; fertiliser industry wastes
and aluminium plant wastes, etc., are water pollutants.

3.8.2.3 Water pollutants

Household wastes, solid wastes, municipal wastes, dead bodies, defeca-
tion, sludge, urination, copper, mercury, lead, zinc, cadmium, caustic
41. (1996) 5 SCC 647: AIR 1996 SC 2715.
42. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70.
 [CHAP.
[40 ENVIRONMENTAL LAW

, fertilisers, rodenticides,
soda, agro-residue, tannery effluents, pesticides
ic, chromium, nickel,
fungicides, temperature, ammonia, nitrogen, arsen
diesel, petrol, grease,
sulphide, radioactive materials, manganese, oil,
industry, colour and
waste-water discharge from tie and dye and pulp
odour, etc., are water pollutants.
the concentra-
Most essential is the concentration of the pollutant. If
ot be said to be a
tion is within permissible and tolerable limits, it cann
pollutant.
dule |
Permissible and tolerable limits have been provided for under Sche
(Protection)
to Schedule VII of the Act and Rule 3 of the Environment
Rules, 1986.
w
Thus, if any named pollutant present in the air, water, land is belo
d an
the limits or standards mentioned in the schedules, it cannot be calle
“environmental pollutant, but, the moment it crosses the limit/standard,
it would be named as an environmental pollutant”.

3.8.3. Environmental pollution

2. Definitions.—In this Act, unless the context otherwise requires,—...
(c) “environmental pollution” means the presence in the environment of
any environmental pollutant.
The main emphasis of this definition is on the presence of environmental
pollutants. Thus, the presence of any solid, gaseous or liquid substance
in such a concentration which is injurious to or tends to be injurious to
the environment are pollutants. Presence of biomedical wastes, untreated
effluents, sewage, sludge, throwing of unburnt/half-burnt bodies, city
waste, etc., into water makes it polluted. Similarly, emission of various
gases in impermissible limits or in excess in the air, viz. carbon dioxide,
carbon monoxide, sulphur dioxide, methane, chlorofluorocarbon, nitro-
gen oxide, smoke and others make the atmosphere polluted.
Noise in excess, beyond permissible limits, also amounts to noise pol-
lution. For example, during the daytime the limit of noise is 55dB and
during night is 45dB in residential areas. If noise transgresses this limit,
it causes environmental pollution.
Similarly, suspended particulate matter (SPM) in air in residential
areas must not exceed the prescribed limits.** If the concentration of the
43. Ins. by GSR 826 (E) dt. 16-11-2009 prescribes as follows:
Particulate Matter Concentration in Ambient Air

Annual 60
Size less than 10 um
24 hours 100

Annual 40
Size less than 2.5 um
24 hours 60
 6] THE ENVIRONMENT (PROTECTION) ACT, 1986 141

SPM is beyond this limit, it amounts to atmospheric pollution or air

pollution.
Schedule I of the Environment (Protection) Rules provides various
parameters and standards fer various industrial and other activities
numbering 104 which should not exceed the maximum limit provided
by the schedule, otherwise it would amount to environmental pollution.
Such standards/parameters of emission include temperature limit for dis-
charge of condenser cooling water from thermal power plant, emission
standards from brick kiln, pesticide industry, boilers, organic chemical
manufacturing industry, dye and paint industry effluents, fertiliser indus-
try effluents, noise standards for firecrackers and others.

3.8.3.1 Examples

SCHEDULE I
Item 89.— Noise standards for firecrackers
A(i) The manufacture, sale or use of firecrackers generating noise level
exceeding 125dB(Ar) or 145dB(C) pk at 4 metres distance from the point of
bursting shall be prohibited.

C. The Department of Explosives shall ensure implementation of these

standards.
Note: dB(A1): A—weighted impulse sound pressure level in decibel.
dB(C) pk: C—weighted peak sound pressure level in decibel.
If the cracker produces more than 125 dB(Ar) sound, it would amount to
environmental (noise) pollution as its excessiveness affects human beings,
animals and plants adversely. Thus, the presence of excessive pollutants
in the environment deteriorates the physical environment and affects the
quality of life.
Many authors and judges have used the term “environmental degrada-
tion” in place of environmental pollution.
According to Holgate, it means “a matter in the wrong place, at the
wrong time and in a wrong quantity”.**
Pollution of the environment has been defined by McLoughlin as:
[t]he introduction by man into any part of the environment of waste matter
or surplus energy, which so changes the environment as directly or indirectly
adversely to affect the opportunity of men to use or enjoy it.*°
K.I. Vasu observed that “it occurs when organisms (plants and animals)
are harmed as a result of abnormal transfer rate of some form of unde-
sirable material or energy”.

44. NW. Holgate, A Perspective on Environmental Pollution (1979) 17.

45. J. McLoughlin, The Law Relating to Pollution (1972) t.
 HAP.
[CH
142 ENVIRONMENTAL LAW

Malviya defines it as “anything released into environment which

impairs or degrades it”.*° tse | :
Looking at the different definitions above, it 1s clear that this term 1s
incapable of any exact and precise definition which can universally be
ed it.
accepted. Therefore, the Environment (Protection) Act, 1986 defin

3.8.3.2 Pollution: meaning

The term “pollution” is derived from the transitive verb “pollute”, which,
according to the Random House Dictionary of the English Language
(1977), means
r. to make foul or unclean, dirty;
2. to pollute the air with smoke;
3. to make impure or morally unclean, defile, desecrate to soil.
Synonyms: 1) soil, befoul; 2) taint, corrupt, debase.
According to Halsbury’s Laws of England”:
Pollution means the direct or indirect discharge by man of substances or
energy into aquatic environment resulting in hazard to human health, harm
to living resources and aquatic ecosystem, damage to amenities or interfer-
ence with other legitimate uses of water.
According to S. Saghir Ahmad J:
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 pollu-
tion has to compensate for the damages for the restoration of environment
and ecology.*®
The Dictionary of Ecology and the Environment defines pollution as
“presence of abnormally high concentration of harmful substances in the
environment, often put there by people”*’, it is the presence of environ-
mental pollutants in the environment. Pollutant has further been defined
as “any solid, liquid or gaseous substance present in such concentration
as may be or tends to be injurious to environment”.
Section 2(c) does not specifically mention “noise pollution” as envi-
ronmental pollution, but Section 6 refers to it as pollution. Various pro-
nouncements of courts*® have also made it very clear. The Air (Prevention
and Control of Pollution) Amendment Act, 1987 now also includes noise
46.R.A. Malviya, Environmental Pollution: Its Control Under International Law
(1987) 23.
47. Vol. 38 (4th Edn.).
48. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997, 2003.
49. P.H. Collins, Dictionary of Ecology and the Environment (1988) 138.
50. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70; Burrabazar
Fire Works Dealers Assn. v. Commr. of Police, AIR 1998 Cal 121; Rabin Mukherjee
v. State of W.B., AIR 1985 Cal 222; Gotham Construction Co. v. Amulya Krishna
Ghose, AIR 1968 Cal 91; Madarsa Road Residents Assn. v. Lt. Governor, AIR 1995
Del 195.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 143

and air pollution. Now, noise is regarded as a big pollution problem in

cities and industrial areas, as it causes nuisance and adversely affects the
health of human beings, plants, animals and property.
-

3.8.4 Handling
2. Definitions.— In this Act, unless the context otherwise requires, —...
(d) “handling”, in relation to any substance, means the manufacture,
processing, treatment, package, storage, transportation, use, collec-
tion, destruction, conversion, offering for sale, transfer or the like of
such substance.
The term has been given a wide meaning. It includes 1) manufacture,
2) processing, 3) treatment, 4) package, 5) storage, 6) transportation,
7) use, 8) collection, 9) destruction, 10) conversion, 11) offering for sale,
12) transfer, and 13) the like.
The term has been defined with reference to “substance” only and this
definition is inclusive and not exhaustive.

3.8.5 Hazardous substance

2. Definitions.— In this Act, unless the context otherwise requires, —...
(e) “hazardous substance” means any substance or preparation which,
by reason of its chemical or physico-chemical properties or handling,
is liable to cause harm to human beings, other living creatures, plants,
micro-organisms, property or the environment.
“Hazardous” means “risky” or “dangerous”. Therefore, any substance
‘

which is likely to cause harm to living beings, property or any compo-

nent of the environment can be named as hazardous substance. In M.C.
Mehta v. Union of India*', hot mix plant to resurface the airport runway
was found to be a hazardous industry as it was causing air pollution.
The hazardous nature of the substance—either qualitatively or quan-
titatively—in terms of causing potential damage to the environment
and human beings, other living creatures, plants and property will be
taken into account while prohibiting or restricting the hazardous sub-
stance. Having this in view, various rules have been published relating
to Hazardous Wastes (2008), Hazardous Chemicals (1989), Hazardous
Micro-organisms (1989), Bio-Medical Waste (1998) and Recycled Plastics
(1999). This topic has been dealt with in a separate chapter in detail.

3.8.5.1 Electricity as hazardous substance

In M.P. SEB vy. Collector*, the Madhya Pradesh High Court has
declared that “electricity” is a hazardous substance in any quantity as

51. (1999) 7 SCC 522: AIR 1999 SC 2367.

52. AIR 2003 MP 156.
144 LAW
ENVIRONMENTAL [CHAP.
7 ,

“its” physico-chemical properties are liable to cause harm to human

beings and other living creatures, plants, microorganisms, etc., under
this section.

3.8.6 Occupier
2. Definitions.— In this Act, unless the context otherwise requires,—...
(f) “occupier”, in relation to any factory or premises, means a person
who has control over the affairs of the factory or the premises and
includes, in relation to any substance, the person in possession of the
substance.
First part of the definition defines the term occupier in relation to factory
or premises, and the second part defines it in relation to substances. A
similar definition has been provided under Rule 2(e) relating to the term
“person”.
The word “occupier” has been adopted from the Factories Act, 1948.
The original Act, 1948 defined the term as “the person who has ulti-
mate control over the affairs of the factory and where the said affairs are
entrusted to the managing agent, such agent shall be deemed to be an
occupier of the factory”. But by the Factory Amendment Act, 1987, it has
been enlarged and now it also includes “individual partners or members”
in the case of a firm or other associations of individuals, the “Directors”
in the case of a company and the “person or persons” appointed to man-
age the affairs of the factory in the case of a factory owned and con-
trolled by the Central Government or by any State Government or any
local authority.

3.8.7 Prescribed
2. Definitions.— In this Act, unless the context otherwise requires,—...
(g) “prescribed” means prescribed by rules made under this Act.

CHAPTER II
General Powers of the Central Government
3. Power of Central Government to take measures to protect and
improve environment.— (1) Subject to the provisions of this Act, the Central
Government shall have the power to take all such measures as it deems nec-
essary or expedient for the purpose of protecting and improving the quality
of the environment and preventing, controlling and abating environmental
pollution.
(2) In particular, and without prejudice to the generality of the provisions
of sub-section (1), such measures may include measures with respect to all
or
any of the following matters, namely:—
(7) co-ordination of actions by the State Governments, officers and other
authorities—
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 145

(a) under this Act, or the rules made thereunder, or

(6b) under any other law for the time being in force which is relatable
to the objects of this Act;
(i) planning and execution of a nationwide programme for the preven-
tion, control and abatement of environmental pollution;
(141) laying down standards for the quality of environment in its various
aspects;
(7v) laying down standards for emission or discharge of environmental
pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid
down under this clause from different sources having regard to the quality
or composition of the emission or discharge of environmental pollutants
from such sources;
(v) restriction of areas in which any industries, operations or processes or
class of industries, operations or processes shall not be carried out or
shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of acci-
dents which may cause environmental pollution and remedial meas-
ures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous
substances;
(viii) examination of such manufacturing processes, materials and sub-
stances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to
problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufac-
turing or other processes, materials or substances and giving, by
order, of such directions to such authorities, officers or persons as it
may consider necessary to take steps for the prevention, control and
abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and insti-
tutes to carry out the functions entrusted to such environmental labo-
ratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters
relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention,
control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or
expedient for the purpose of securing the effective implementation of
the provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedi-
ent so to do for the purposes of this Act, by order, published in the Official
Gazette, constitute an authority or authorities by such name or names as
may be specified in the order for the purpose of exercising and performing
such of the powers and functions (including the power to issue directions
under Section 5) of the Central Government under this Act and for taking
measures with respect to such of the matters referred to in sub-section (2)
as may be mentioned in the order and subject to the supervision and control
 |CHAP. »

146 ENVIRONMENTAL LAW

authority
of the Central Government and the provisions of such order, such
take the
or authorities may exercise the powers or perform the functions or
s had
measures so mentioned in the order as if such authority or authoritie
func-
been empowered by this Act or exercise those powers or perform those
tions or take such measures.
Section 3(r) empowers the Central Government to take all such measures
as it “deems necessary” or “expedient” for the purpose of protection and
improvement of 1) quality of the environment, and 2) prevent, control,
and abate the environmental pollution.
Clause (1) does not give or name specific powers which can be exer-
cised by the Central Government, but gives wide powers to be exer-
cised. The Central Government can take any step which the government
“deems necessary” or “expedient” to protect and improve the “quality
of the environment”. Secondly, these necessary and expedient measures
may also be taken to prevent, control and abate environmental pollu-
tion. Thus, wide powers have been conferred by the Act on the Central
Government.
In Lafarge Umiam Mining (P) Ltd. v. Union of India®’ (Lafarge Umiam
Mining), the Supreme Court clarified that Section 3
confers a power coupled with duty and, thus, it is incumbent on the Central
Government, ... to appoint an appropriate authority, preferably in the form
of the regulator, at the State and at the Central level for ensuring implemen-
tation of the National Forest Policy, 1988 .... The regulatory mechanism
warrants open discussion, public participation and circulation of draft paper
inviting suggestions.
The basis objective of the National Forest Policy, 1988 include positive
and proactive steps to be taken. These include maintenance of environmen-
tal stability through preservation, restoration of ecological balance that has
been adversely disturbed by serious depletion of forests, conservation of nat-
ural heritage of the country by ... vast variety of flora and fauna, checking
soil erosion and denudation in catchment area ... .
In M.C. Mehta v. Union of India**, the Supreme Court pursuant to
clauses (1) and (3) of Section 3, Environment (Protection) Act consti-
tuted an authority for National Capital Region for traffic safety laws and
vehicular pollution under the Chairmanship of Shri Bhure Lal.
The Bombay High Court also explained that “Sections 3, 4 and 5 of the
Environment (Protection) Act bestow on the Central Government plenary
powers to take all steps and measures as it deems necessary or expedient
for the purpose of protecting and improving the environment ... . The
53. (2011) 7 SCC 338: AIR 2011 SC 2781.
54. (1998) 2 SCC 435: AIR 1998 SC 617. In the same case, while pronouncing its deci-
sion, the Supreme Court directed that all private non-commercial vehicles to con-
form to Euro I norms by 1-6-1999 and Euro II norms by 1-4-2000. Further, ban on
diesel-driven taxis should be strictly enforced and taxis conforming to Euro II norms
shall only be registered. Decision on 29-4-1999 reported in (1999) 6 SCC 12.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 147

Act also contemplates appointment of several authorities for the purpose

of overseeing the effective implementation of the environment protec-
tion policy envisaged by the Act”.°> Thus, the Act intended to put severe
restrictions on untrammelled.depredation of environmental resources.
Further, the Pollution Control Boards and their officers are free and
competent to take action against any person found violating the environ-
mental laws and they should not wait for the directions of the court for
taking action.** Such course of seeking directions from the court would
amount to dereliction of duty.
In T.N. Godavarman Thirumulpad v. Union of India*’, on the detec-
tion of 66 wagons containing timber, the Supreme Court appointed a
high-powered committee “to take such steps as it deems proper for nec-
essary/appropriate investigation, storage, disposal, etc., of the detained
timer and to carry out such action, in future” if time is found. It also
ordered for the constitution of a multi-disciplinary team to carry out
investigations, etc. It was made clear by the court that the Ministry of
Environment and Forests (MoEF) can issue suitable directions for the
effective implementation of the orders of the court.
The measures which can be undertaken by the Central Government
as it deems necessary or expedient would also include the measures men-
tioned in clause 2 of Section 3. These measures are without prejudice to
the generality of clause (1) of Section 3 and some of the specific measures
suggested are as follows:°®
I. Coordination of the actions by the State Governments, officers and
other authorities a) under this Act, or the rules made thereunder; or
b) under any other law for the time being in force which is relatable to
the objects of this Act.
Il. Planning and execution of a nationwide programme for the pre-
vention, control and abatement of environmental pollution.— In M.C.
Mehta v. Union of India*’, the Supreme Court of India directed the
Central Government to take adequate measures to make people aware
about the protection of the environment; keeping the citizens informed,
said the Supreme Court, is an obligation of the government. The following

55. Sneha Mandal Coop. Housing Society Ltd. vy. Union of India, AIR 2000 Bom 121.
56.Suo Motu v. Vatva Industries Assn., AIR 2000 Guj 33; see, T.N. Godavarman
Thirumulpad v. Union of India, (2001) 10 SCC 645: AIR 2000 SC 1636.
57. (2001) 10 SCC 645. In Research Foundation for Science v. Union of India, (1999) 1
SCC 223: AIR 1998 SC 3116, the Supreme Court appointed a High Power Committee
on Management of Hazardous Wastes including oil which was lying at docks/ports/
inland containers at Mumbai and Kolkata. The committee was required to examine
the quantum and nature of hazardous waste.
58. The list of XIV measures under cl. 2 of S. 3 is an inclusive list but not an exhaustive
one.
59. (1992) 1 SCC 358: AIR 1992 SC 382.
 148 ENVIRONMENTAL LAW [CHAP.

directions were issued by the court to the Central Government to fulfil

the above obligation:
(a) Central Government to issue directions to the State
Governments and Union Territories to enforce a condition
of licence to all cinema halls, touring cinemas and video par-
lours to exhibit free of cost at least two slides/messages on
environment in each show.
(b) The Ministry of Information and Broadcasting of the Indian
Government to produce information films on various aspects
of environmental pollution.
(c) Spread relative information through radio and TV.
(d) Making environment a compulsory subject in schools and
colleges.
III. Laying down standards for the quality of environment in its var-
ious aspects.
The term “quality of environment” was emphasised in
V. Lakshmipathy v. State of Karnataka® when the court observed:
Examples are not wanting of valiant efforts made by public spirited individ-
uals and groups around the world, to repair and restore the damaged natural
resources that are crucial to the present and future well-being of the nationals
relating to essentials such as water, land, wildlife and environment in general
as well as quality of life in particular in cities or towns.
... The right to life inherent in Article 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 qual-
ity of air and the quality of environment are threatened, 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.®!
In this case, a public-spirited person, V. Lakshmipathy, with other resi-
dents, filed a writ petition under Article 226 of the Constitution against
the location and operation of industries in a residential area. They com-
plained of serious threat to public health on account of environmental
hazard in the form of air pollution, noise pollution, land pollution, etc.
by the industries and industrial activity in the area. The court, while
issuing the writ of mandamus, directed the industries of the area to stop
working and asked the Bangalore Development Authority to carry out
lay-out work in accordance with law and construct roads in the area.
The expression “improvement and enhancement of the quality of
environment” was also mentioned in the Stockholm Declaration on
Human Environment (1972), which was referred to by the Supreme

60. AIR 1992 Kar 57.

61. Ibid, 70.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 149

Court in Vellore Citizens’ Welfare Forum’. The court observed that

customary international laws which are not contrary to the municipal
law are deemed to have been incorporated in the domestic law. Because
of this fact, the Statement of Objects and Reasons of the Environment
(Protection) Act stated:
the decline in environmental quality has been evidenced by increasing pollu-
tion, loss of vegetal cover and biological diversity, excessive concentrations
of harmful chemicals in the ambient atmosphere and in food chain, growing
risk of environmental accident and threat to life-support system. The world
community’s resolved to protect and enhance the environmental quality.
Thus, the Environment (Protection) Act was passed having in view the
Stockholm Declaration of 1972. The court also declared that the right
of a person to have a pollution-free environment is a part of the basic
jurisprudence of the land. It includes the quality of air, water and general
environment.
The Supreme Court, referring to State of H.P. v. Umed Ram Sharma®,
held that right to life with human dignity encompasses within its fold
some of the finer facets of human civilization including better standards
of life, hygienic conditions in workplace and leisure.® In another case, the
court explained:
Right to life is a fundamental right under Article 21 of the Constitution
and it includes the right of enjoyment of pollution-free water and air for
full enjoyment of life. If anything endangers or impairs the quality of life in
derogation of laws, a citizen has a right to have recourse to Article 32 of the
Constitution for removing the pollution of water or air which may be detri-
mental to theeeekiy of life.®
Subha. : € of Bibar’®, the petitioner wanted writ or direc-
tionra He court to prevent the BekStO Collieries at Ghatootand and CASE PILOT

Tata Iron and Steel Co. Ltd. from polluting the Bokaro river by disallow-
ing the discharging of sludge/slurry in it.

3.9 Environmental impact assessment (EIA)

Environmental impact assessment (EIA) is a procedure to know the
positive and negative aspects of a proposed activity including the nat-
ural, social and economic aspects. It may also be said that it is a deci-
sion-making process to take a decision whether a developmental project
must start or not.

62. (1996) 5 SCC 647: AIR 1996 SC 2715.

63. (1986) 2 SCC 68: AIR 1986 SC 847.
64. Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922.
65. Subhash Kumar v. State of Bihar, (1991) 1 SCC 598: AIR 1991 SC 420, 424.
66. Ibid.
I5Q ENVIRONMENTAL LAW |CHAP.
is »

The International Association for Impact Assessment (IAIA) defines

EIA as “the process of identifying, predicting, evaluating and mitigating
the biophysical, social, and other relevant effects of development propos-
als prior to major decisions being taken and commitments made”®’. In
environmental cases the purpose of the assessment is to ensure that deci-
sion-makers consider the ensuing environmental impacts when deciding
whether a project should be allowed to proceed or not. The EIA includes
likely adverse effects on human beings, vegetation cover, animal king-
dom, air, water, land and property.
Environmental Impact Assessment (EIA) is a tool that seeks to ensure sus-
tainable development through the evaluation of those impacts arising from
a major activity (policy, plan, program, or project) that are likely to have
significant environmental effects. It is anticipatory, participatory, and sys-
tematic in nature and relies on multidisciplinary input.°*
It has been defined by several persons. Some such definitions are as
follows:
An Environmental Impact Assessment (EIA) is an assessment of the likely
human environmental health impact, risk to ecological health, and changes
to nature’s services that a project may have.®
Environmental impact assessment is, in its simplest form, a planning tool
that is now generally regarded as an integral component of sound decision
making .... As a planning tool it has both information gathering and deci-
sion making component which provides the decision maker with an objective
basis for granting or denying approval for a proposed development.”
The phrase “Environmental Impact Assessment” comes from
Section 102(2), National Environmental Policy Act, 1969, (US) (NEPA).
EIA is compulsory if a major federal action significantly affects the human
environment .... In National Organisation of Reform of Marijuana
Law vy. United States’', the court declared that the participation of the
US in an aerial exercise for narcotic eradication by spraying herbicides
in a neighbouring country requires EIA prior to spray. Some rudiments
of EIA are implicit even in early examples of environmental legislation.”

67. “Principle of Environmental Impact Assessment Best Practice”, International

Association for Impact Assessment, 1999.
68.J. Glasson, R. Therivel, & A. Chadwick, “Introduction to Environmental Impact
Assessment” (UCL Press, London 1994).
69. <http://en.articlesgratuits.com/environmental-impact-assessment— id1298.php>.
70. Friends of Old Man River Society v. Canada (Minister of Transport), (1992) 1 SCR
3 (Can).
71. (1978) 8 ELR 20, 572.
72. Napoleon in 1910 issued a decree which divided noxious occupations into
categories,
those which must be far removed from habitations; those which may be permit
ted on
the outskirts of towns; and those which can be tolerated even close
to habitations,
having regard to the importance of the work and the importance of
the surrounding
dwellings.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 151

It was also introduced by the European nations after the publication of

“Our Common Future” report of the World Commission on Environment
and Development in 1987. Some other countries have also passed laws
to introduce EIA. Some of them are: Law of the People’s Republic of
China on the Environmental Impact Assessment, 2002; the European
Council Directive 85/337/EEC of 27 June 1985; Environmental Impact
Assessment Law, 1997 (Japan); Environmental Impact Assessment Act,
2003 (Tango).
If we make a survey of various statutes and the international conven-
tion, we will find that there are two types of methods of EIA, which are
stated below.

3.9.1 Mandatory method

Some countries have made the exercise of EIA compulsory and involved
the participation of the people concerned of the area in the process. The
environmental agencies are obliged to submit EIA before granting or
approval of the project is given. Such EIA implicitly guarantees the right
to information, public participation and provides a solid basis for proper
impact assessment. Involvement of the public including voluntary/expert
groups working in this field helps in making thorough enquiry of the
proposed project. NEPA’? is the best illustration of such model.

3.9.2 Discretionary method

When EIA is not compulsory by law and depends on the discretion of
the administrative or nodal agency, it is known as discretionary method.
The administrative authority judging the exigency and necessity of the
project/proposal can demand for EIA of that project. It is said that quick,
proficient, and suitable decision is the main plank of this method. It is
also less time consuming. But it must be remembered that it gives unbri-
dled and arbitrary powers to the administrative authority. Secrecy main-
tained by the authority is another darker side of this method.

3.9.3. Cost—benefit analysis

Cost—benefit effect simply compares all the expected present and future
benefits of a project or policy with its present and future costs. It evalu-
ates the practicability and viability of the project in relation to economic
gains and the likely adverse effects of the project on the environment.
Now it is felt that real value must be given to environmental components
which must be recognised and considered in EIA. “Direct value” must be

73.5. 102{2)(c):
 152 ENVIRONMENTAL LAW [CHAP.

given to the natural forces like air, water, vegetation cover, commercial
or non-commercial; for example, output of a forest would include both
lumber (commercial) and recreational amenity value (non-commercial);
and the “indirect value” like the ecological functions of the ecosystem,
such as climate stabilisation, nitrogen fixation, must also be considered
in cost benefit effects. Recently an innovative new approach has been
evolved to be considered in EIA, known as the generational cost-benefit
analysis (GCBA). This approach discounts net benefits from the perspec-
tive of progeny involved. This approach was adopted by the courts also.”

3.10 International convention on EIA in a transboundary

context
The Conference on the Human Environment, held in Stockholm in 1972,
asserted the responsibility of States to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction (Principle 21
in the Declaration). In 1975, the Final Act of the Conference on Security
and Cooperation in Europe referred to Economic Commission for Europe
(ECE) to follow up on the concept of EIA. By the early 1980s, EIA pro-
cedure was adopted in a number of ECE Member States and, in 1982,
a group of experts on EIA was established under the senior advisers to
ECE governments on environmental and water problems. In January
1987, the UNEP group of experts on environmental law elaborated the
concept of EJA in a transboundary context.
The fourth session of the expert group was held in Espoo (Finland)
from 25 February to 1 March 1991, which adopted the “Convention
on Environmental Impact Assessment in a Transboundary Context”
on 25 February 1991 (also known as Espoo Convention). The con-_
vention entered into force on to September 1997. A protocolto this
Espoo Conven was
tio
adopted
n , known-as*the»Protocol on Strategic

74. G. Sundarrajan v. Union of India, (2013) 6 SCC 620; Goa

Foundation v. Konkan
Railway Corpn., (1994) 1 Mah LJ 21.
75. The protocol entered into force on 1 I-7-2010.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 153

documentation, consultations on the basis of the ELA documentation,

post-project analysis, bilateral and multilateral cooperation, research
programmes, settlement of disputes, etc. As a result of this convention,
many countries have adopted it in their municipal laws.

3.11 Indian model

India has adopted a preventive mode of controlling and containing the
environmental problems. One of the reasons to adopt this model is the
Bhopal gas catastrophe”, known to be world’s worst industrial disaster,
and judicial pronouncements” thereafter. Had there been the EIA law in
force, this would not have happened. This incident taught us many les-
sons including that we must have preventive laws and regulations rather
than curative ones. We even did not learn from the US experience that
made EIA mandatory, for the developmental projects significantly affect-
ing the environment, long back in the year 1969.
During the course of time, public also became aware of these requirements
and the Central Government with a notification in 1994”* introduced
EIA for the projects mentioned therein. The regulation was applicable
if the quantum of investment were above the threshold, i.e. = 50 crores
in the beginning and later on raised it to #100 crores. The applicants
of new projects/industries as well as those proposing modernisation of
the already existing industry were to submit EIA of the proposal to the
Pollution Control Board with the management plan. This EIA was to be
evaluated by the Expert Committee that would give its recommendation.
In 1997”, a significant amendment was made to include “public hear-
ing “as
a part of
EIA. It laid down the detailed procedure of public hear-
ing and the persons and organisations to participate in it. It was made
compulsory to include three senior citizens in the panel to conduct “pub-
lic hearing”. The notification of 1997 also required one month’s public
notice of public hearing to residents of the area in which the proposed
project will start. The public notice must be given in the language which
the residents of the area know. Both were made compulsory. These two
notifications gave impetus to the environment protection movement and
were in line with the developments in international environmental law;
for example, Convention on Environmental Impact Assessment in a
Transboundary Context, 1991.

76. It took place on 2 and 3-12-1984 (night). It is said that 3000 persons died the same
night and 2 lakh persons were taken of various ailments because of leakage of
MIC gas.
77. Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1988 SC 2187; Kinkri
Devi v. State of H.P., AIR 1988 HP 4.
78. Dt. 27-1-1994.
79. Dt. 10-4-1997.
 [CHAP.
? 2

154. ENVIRONMENTAL LAW

3.12 EIA Notification, 2006*°

ication
This notification is in supersession of the abovementioned notif
before
of 1994 except in respect of things done or omitted to be done
onal
such supersession. It also aims to achieve the objectives of Nati
Environment Policy as approved by the Union Cabinet on 18 May 2006.
This notification has brought fundamental changes. It has also consol-
idated the notification of 1994 and 1997 and the amendments made
therein. Various court decisions on the topic have also been taken care of
by the government in consolidating the notification. The Central agency
and the State agencies have been given independent powers to consider
the EIA and take decisions for clearance of the projects with different
threshold levels.

3.12.1 Environmental Clearance Regulation, 2006°'

The Environmental Clearance Regulation of 2006 is in supersession
of the notification dated 27 January 1994 relating to EIA. It has been
issued in the exercise of the powers conferred by Section 3(1) and (2)(v)
of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the
Environment (Protection) Rules, 1986. The regulation provides that con-
struction of new projects and activities or expansion or modernisation of
existing projects at the time of this notification will not be undertaken
on and from the date of its publication (14 September 2006) without the
prior environmental clearance from the Central Government or by the
State Level Environmental Jmpact Assessment Authority (SLEIAA) duly
constituted under this regulation.
The schedule of the notification has provided a list of projects/activi-
ties which require environmental clearance. The projects which require
clearance from the Central Government are 30 in number. Some of them
are—offshore and onshore oil and gas exploration, mining, airports,
river valley, soda ash industry, pesticides industry and complex, chem-
ical fertiliser, integrated paint industry, oil and gas transportation pipe
line, ship wrecking yards projects, asbestos and others.** The projects
or activities which require environmental clearance from the SLEAC
are—common effluent treatment plants, common solid municipal
waste management, building and construction projects, township and
area development programmers, etc. Some of the industries/activities
have been categorised on the basis of their production capacity as they

80. It has been notified, in exercise of the powers conferred by sub-s. (1) and cl. (v) of
sub-s. (2) of S. 3, Environment (Protection) Act, 1986, read with cl. (d) of sub-r. (3)
of R. 5 of the Environment (Protection) Rules, 1986.
81. Vide Noti. No. S.O. 1533(E), dt. 14-9-2006 published in the Gaz. of India, Extra.,
Pt. II, S. 3(77), dt. 14-9-2006, 36-72, No. 1067.
82. The fall under category “A” of the schedule.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 155

fall under category “A” as well under category “B” of the schedule; for
example, mining of minerals of more than 50 hectares falls under cate-
gory “A” and if the area is less than 50 hectares, it would fall under cat-
egory “B”. Such projects/activities are river valley, thermal power plants,
coal washeries, metallurgical industries, cement plants, coke oven plants,
leather/skin/hide processing, etc.
All projects and activities are broadly categorised into “A” and “B”
category on the basis of spatial extent of potential impacts and potential
impact on human health and natural and man made resources.
As per para 7 of the regulation, there are four stages of “prior environ-
mental clearance” process for new projects. They are:
1. Screening (only for category “B” projects and activities).—By
SLEAC for determining whether or not the project/activity requires fur-
ther environmental studies for preparation of EIA depending upon the
nature and location specificity of the project, they shall be termed as
“B-1” and the rest as “B-2” project requiring no EIA.
2. Scope.—It refers to the process by which the Expert Appraisal
Committee (EAC) in case of category “A” projects/activities, and State
Level Appraisal Committee (SEAC) in the category “B-A” projects/activ-
ities, including expansion, modernisation change in product mix of exist-
ing projects/activities, determine detailed and comprehensive terms of
reference (TOR) for the preparation of EIA of the project/activity, which
require prior environmental clearance. If need be, the visit of the site
can be made by the sub-group of the EAC or SEAC. Such TOR will be
conveyed to the applicant within 60 days from the receipt of Form I.
Application for prior environment clearance can also be rejected at this
stage.
After this notification of 2006, mining of minor minerals also require
EIA but if the area is less than 5 hectares, the notification is not appli-
cable. The Ministry of Mines, Government of India has also issued
“Environmental Aspects of Quarrying and of Minor Minerals — Evolving
of Model Guidelines” on 16 May 2011. These model guidelines also pro-
vide that cost of rehabilitation of flora and fauna destroyed while quarry-
ing or mining operation shall be borne by person holding the quarrying
or mining lease.*
3. Public consultation.—It refers to the process by which the concerns
of local affected persons and others who have plausible stake in the envi-
ronment impact of the project/activity are ascertained with a view to
taking into accounting all material concerning the project/activity. All
projects/activities falling under “A” and “B-1” category are: expansion

83. Deepak Kumar v. State of Haryana, (2012) 4 SCC 629: AIR 2012 SC 1386.
 156 ENVIRONMENTAL LAW [CHAP. 2

of roads and highways, modernisation of irrigation projects, projects/

activities concerning national defence/security and building/construction
activities and township. It has two stages: 1) public hearing at the site or
at the close proximity of the project for ascertaining concerns of local
affected persons; and 2) obtaining response in writing from other con-
cerned persons.
Public hearing shall be conducted by the State Pollution Control Board
(SPCB) or Union Territory Pollution Control Committee (UTPCC) in the
specified manner, and they would forward its proceeding to the regula-
tory authority within 45 days of the request of the applicant. Such public
hearing shall be held after giving a notice in, at least, one major national
daily and one regional vernacular daily of the date, time and exact venue
for the conduct of public hearing. A minimum of 30 days notice shall be
provided for such hearing to the public for furnishing their responses.
The advertisement (notice) shall carry summary of the EIA of the project.
The SPCB/UTPCC shall also arrange to video film the entire proceedings
of public hearing. Attendance of the persons present shall be noted and
annexed with the final proceedings. No quorum has been fixed for start-
ing the proceedings.
All the responses received as part of public consultation (written or
oral) shall be forwarded to the applicant through quickest available
means, who shall submit its report (may be supplementary) to make
additions and alterations in EIA and EMP.
4. Appraisal.—A detailed scrutiny by the EAC or SLEAC of the appli-
cation is known as appraisal. The EIA report, outcome of the public
consultation including public hearing proceedings, are examined thor-
oughly and in a transparent manner. Applicant shall also be invited for
furnishing necessary clarification in person or through an authorised
representative. On the conclusion of the proceedings, the EAC or SLEAC
shall make “categorical recommendations” to the regulatory authority
either for grant of prior environmental clearance on stipulated terms and
conditions, or for rejection of the application together with reasons for
the same.
In G. Sundarrajan v. Union ofIndia**, the Supreme Court observed that
“economic scientific benefits” have to be balanced with that of “minor
radiological detriments” on the touchstone of our national nuclear pol-
icy. “Economic benefit has to be viewed on a larger canvas which
not
only augument our economic growth but alleviate poverty and gener
ate
more employment.” The reports of the expert bodies must also be
taken
and considered before giving or according clearance for nucle
ar plants.
While issuing the clearance for the expansion of the Nuclear
Power Plant
84. (2013) 6 SCC 620. In this case EIA to a nuclear powe
r plant was discussed by the
court.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 157

of Kudankulam, the Ministry of Environment and Forest laid down var-

ious conditions.
The appraisal of the application shall be completed within 60 days of
the receipt of the final EIA report by the EAC or SLEAC.
The regulatory authority shall consider the recommendations of EAC
and SLEAC and convey the decision of approval or rejection within
45 days of the receipt of the recommendation of the EAC or SLEAC.
The regulatory authority, if it disagrees with the recommendations of
the EAC or SLEAC, can send the same to them stating the reasons for
disagreement.
If the decision of the regulatory authority is not communicated within
the stipulated time, the applicant may proceed as if the environment
clearance sought for has been granted or denied in terms of the final rec-
ommendations of the EAC or SLEAC concerned [para. 7/(ii2)].

3.12.2 Validity of environment clearance**

The validity period of the prior environmental clearance is as shown in
Table r:
TABLE 1 Validity period for different projects

For river valley project 10 years

Mining projects Maximum 30 years
(the EAC/SLEAC may fix any time period subject to the maximum period of
30 years)
Area development/township —_ Up to or to responsibility of the developer which can be extended up to 5 years
All other projects 5 years

It shall be mandatory for the project management to submit half-yearly

compliance reports on 1 June and 1 December of each calendar year.
Such compliance reports shall be public documents and will also be dis-
played on website of the regulatory authority (para 10). With the transfer
of project/activity, the environmental clearance would also be transferred
automatically on the same terms and conditions and for the remaining
period only.
In Orissa Mining Corpn. Ltd. v. Ministry of Environment & Forest*®,
the Supreme Court made it clear that there can be stagewise grant of
clearance to ensure compliance with environmental safeguards and there
can be rejection of final clearance due to non-compliance of the condi-
tions imposed in preliminary clearance stage. Further, an opportunity
must be provided for the compliance of the preconditions for grant of

85. Provided in para. 9 of the Noti., dt. 14-9-2006.

86. (2013) 6 SCC 476.
 [CHAP.
158 ENVIRONMENTAL LAW

ental
final clearance. It was also clarified that while granting environm
l
clearance, the social, political, cultural and religious rights of the triba
people, including right to worship, must be taken into account and must
be safeguarded.*”
While giving environmental clearance related provisions of various
other related laws are also taken into consideration, such as the Forest
(Conservation) Act, 1980; the Forest Act, 1927; the Scheduled Tribes
and other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006; Panchayats (Extension to the Scheduled Areas) Act, 1996 and
others.

3.12.3 Review of EIA by the judiciary

The decision of the Central Government to grant environmental clear-
ance (EIA) can only be tested “on the anvil of well-recognised principles
of judicial review”, i.e. on the grounds of illegality, irrationality and pro-
cedural impropriety.** If the government has breached one of the manda-
tory requirements in procedure, the court can quash the environmental
clearance. It cannot be reviewed or rejected on any other grounds.

3.12.4 Need to review the notification

In Noida Memorial Complex near Okbla Bird Sanctuary, re®’, the Supreme
Court dealt with the issue of EJA in the light of various provisions of the
EIA Notification, 2006 and suggested that the EIA Notification urgently
calls for a close second look by the authorities concerned. The project/
activities under Section 8(a) and 8(b) of the schedule to the notification
need to be described with greater precision and clarity and that “built-up
area with facilities open to the sky need to be freed from its present
ambiguity and vagueness” need to be defined. It was also declared that
if a project falls under such category, then prior approval of the Central
Government (the EAC) is required.
In Vedire Vankata Reddy v. Union of India, it has been made clear
that as environmental clearance is mandatory, procedure under notifica-
tion dated 24 April 1994 must be meticulously followed. Only on such
clearance by the impact assessment agency of the Central Government,

87. Gram Sabha was directed to examine if the mining project, in any way, affects the
religious rights of the tribal people of the area. The Ministry of E&F was to give
clearance on the basis of the report of Gram Sabha.
88. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575, 594-95; also,
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338: AIR 2011
SC. 278r.
89. (zorr) r SCC 744.
90. AIR 2005 AP 155.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 159

the project of construction of dam by the State Government can be

started. The court held that it was not permissible for the Andhra
Pradesh State Government to proceed ahead with the implementation of
dam construction eeeree eit anti clearance iis obtained.
Nar Bachao Andolan v. Union of India*', the environmental
cléasante vwass given lyeiy PET Government in 1987, much prior to CASE PILOT
abovementioned notification of 1994. Even the dispute regarding rais-
ing the height of the dam was also settled by an award given in 1978.
Thereafter, the construction was taken up in 1987. The writ was filed
to challenge the construction of and raising the height of the dam in
1994. The Supreme Court held that when projects are undertaken and
hundreds and crores of public money are spent, individuals and organ-
isations petitioning in the garb of public interest litigation (PIL) cannot
be entertained. As the project commenced long back, it does not require
EIA as required by the above notification.
In M.C. Mehta v. Union of India”*, the Supreme Court made it clear
that though the notification dated 29 January 1994 Is not applicable to
mining mineral but having regard to degradation of environment and
risk involved to human health and ecology, the EJA is must. Moreover,
the notification is also applicable when renewal of mining is considered
after the issue of notification. In this case, the mining activities in Delhi
and Haryana region of Aravalli hills causing environmental degradation
was challenged. The Supreme Court appointed a “monitoring commit-
tee” to examine the issue with certain directions.
Ministry of Environment and Forest vide its Notification S$.O. 1236(E)
dated 27 October 2003 has also brought within the purview of the noti-
fication of 27 January 1994, new projects relating to a new township,
industrial township, settlement of colonies, hotel complexes, hospitals,
office complexes for 1000 persons and discharging sewage of 50,000
litres/day and above, or with an investment of = 50 crores or above and
industrial estates having an area of 50 hectares or above.”°
In Lafarge Umiam Mining”, the court made it clear that if the MoEF
has cleared the project under the EIA Notification, 1994, there is no need
to get fresh clearance under EIA Notification, 2006.
The court also made it clear that it can review the decision-making
process to ensure that the decision of the MoEF is fair and fully
informed and based on correct principles, and free from bars or restraint.

91. (2000) 10 SCC 664: AIR 2000 SC 3751.

92. (2004) 12 SCC 118: AIR 2004 SC 4016.
93. The government relied upon the observation in the matter of news from Hindustan
Times entitled “And Quiet Flows the Maily Yamuna” v. Central Pollution Control
Board, Writ Petition No. 725 of 1994.
94. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338: AIR 2011
SG 2785:
 [CHAP.
160 ENVIRONMENTAL LAW

the land
Participation of the tribal people in decision-making is a must if
falls in such an area. |
The Supreme Court in Sterlite Industries (India) Ltd. v. Union of
India? has made it clear that any environmental clearance issued with
reference to EIA Notification, 1994 cannot be quashed by the court with-
out any substantial ground. The High Court could not have allowed a
writ petition on the ground that environmental clearance was issued on
the basis of “rapid” EIA or it was inadequate. Till the EIA clearance cer-
tificate was issued (by the Central Government on 16 January 1995 and
by Tamil Nadu Pollution Control Board on 22 May 1995), public hearing
was not compulsory.’*® EIA done by the experts, expert authorities can
only be quashed on well recognised principles of judicial review, 7.¢. only
if there is any illegality, irrationality, or procedural impropriety in grant-
ing the EIA clearance. Violation of some mandatory condition can also
be a ground for taking action against the industry.
The Supreme Court has also made it clear that EIA notification applies
prospectively.””
IV. Laying down standards for emission or discharge of environ-
mental pollutants from various sources whatsoever.—Rule 3 of the
Environment (Protection) Rules, 1986 provides that the standards for
emission or discharge of environmental pollutants from industries, oper-
ations or processes shall be specified in [Schedules I to [V]”* to protect and
improve the quality of environment. Further, clause (2) of Rule 3 empow-
ers the Central Board or State Boards to specify more stringent standards
than the standards prescribed in the schedules. Various schedules dealing
with various aspects of environmental pollutants are as given below:
TABLE 2 Schedules under the Environment (Protection) Rules, 1986

Schedule | It has enlisted 89 industries and the parameter and standards of emission/discharge. Such
industries include thermal power plants, caustic soda industry, dye industries, electroplating,
cement plants, synthetic rubber, pulp and paper industry, leather, fertiliser, nitric acid, iron and
steel, rubber, oil refinery, petrochemicals, pesticides, paint, tannery, lead, glass, noise from
automobiles, food and fruit processing industry, organic chemicals manufacturing industry,
pharmaceuticals industry, water quality standards for coastal waters, marine outfalls, noise

95. (2013) 4 SCC 575; in this case the High Court of Tamil Nadu ordered for the closure
of the industry as the industry was disseminating air, water and land pollution. It was
a copper smelter plant set up by the company.
96. It was made compulsory by a notification of Central Government dt. 10-4-1997.
97. Alaknanda Hydropower Co. Ltd. v. Anuj Joshi, (2014) 1 SCC 769. In this case
Alaknanda Hydropower project in Srinagar was given techno-economic clearance
in 1982 and EIA was done in 1985. The Ministry of Environment & Forest granted
environmental clearance for the project on 3-5-1985. Therefore, the project does not
require any public hearing as per new notifications after 1985.
98. Subs. by G.S.R. 422(E), dt. 19-5-1993 (w.e.f. 19-5-1993)
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 161

(contd.)

Schedule Vil National Ambient Air Quality Standards.

In M.C. Mehta v. Union of India', the Supreme Court, on the basis of

the inspection report of National Environmental Engineering Research
Institute (NEERI), concluded that mining operations in ecologically sen-
sitive areas of Badkhal lake and Surajkund were violating the Ambient
Air Quality Standards in Respect of Noise (Schedule III) and SPM limit
fixed under Schedule I of the Environment (Protection) Rules, 1986.
Schedule VII of the Environment (Protection) Rules, 1986 provides
National Ambient Air Quality Standards (NAAQS). It provides sepa-
rate standards and concentrations in industrial areas, residential areas,
sensitive areas, and the method of measurement of the pollutants.
Concentration in excess of the abovementioned air quality standards
amounts to violation of environmental law and the erring person is liable
to be punished. In the Taj Trapezium case’, the Varadarajan Committee
(1978) and NEERI (1990) gave their reports regarding the status of air
pollution around the Taj Mahal to the Supreme Court. The court based
its findings on these reports. The report of the NEERI observed:
On four occasions during the five years air quality monitoring at Taj Mahal
were found to be higher than 300 pg/m*, i.e. 10 folds of Schedule VII standard
of 30 yg/m: for sensitive area. The values exceeded even the standard of 120
ug/m} set for industrial zones. ... SPM (Suspended Particulate Matter) level
at Taj Mahal was invariably high (more than 200 pg/m’) and exceeded the
National Ambient Air Quality Standard of 100 pg/m* for SPM for sensitive
locations barring a few monsoon months.
Thus, under clause 2(iii), the Central Government is under an obligation
to lay down the standards for a) the quality of environment, and 6) dis-
charge or emission of environment pollutants. Such standards have fixed
the permissible upper limit of emissions/discharge. Any discharge/emis-
sion beyond such standard would amount to violation of environmental
laws.
In M.C. Mehta v. Union ofIndia’ (Ganga Pollution case), the Supreme
Court, while dealing with the water pollution of river Ganga, observed:
pollution of the water in the river Ganga is of the highest degree at Kanpur.
The Ganga water samples taken at Kanpur shows that the water in the river
Ganga at Kanpur consisted of 29.200 units (mg/ml) of iron in the month of

1. (1996) 8 SCC 462: AIR 1996 SC 19.

2. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353.
3. (1988) 1 SCC 471: 1988 SCC (Cri) 141.
 162 ENVIRONMENTAL LAW [CHAP.

August 1986, when the ISI limit for river water is 0.3 and 0.900 (mg/ml) of
manganese whereas the WHO limit of manganese for drinking water 1s 0.05.
Further the Bio Oxygen Demand (BOD) and Chemical Oxygen Demand
(COD) values were found higher than the prescribed limits. Thus, the
court also based its decision on the findings of scientific reports which
showed that pollutants in the river Ganga were higher than the permissi-
ble limits of discharge/emission. On the basis of this, various directions
were given to the Mahanagarpalika of Kanpur city. |
In Deepak Kumar v. State of Haryana*, the Supreme Court made it
clear that though no EIA is required if the mining or extraction of gravel,
boulders, sand quarries, and minerals is of less than five hectares. But if
the extraction of alluvial material from or within or near a stream has a
direct impact on the stream’s physical habitat characteristics®, it requires
mandatory EIA before allotting them or permitting such activity. If the
extraction is in blocks of less than five hectares, may be separated by one
mile, collective impact of the activity may be significant. Hence there is
a necessity of a proper EIA before the allocation of them. The court also
directed that State governments/departments must seek environmental
clearance from the Ministry of Environment and Forest before grant of
such projects.
V. The Central Government and the State Governments have been
authorised to designate an area for industries, and for processes and
operations. Further, the industry, operation or process can be carried out
subject to the safeguards provided by the laws or the competent author-
ities. For example, it has been time and again declared by courts that
tanneries cannot work unless and until treatment plants are installed by
the industry or processes.
The Supreme Court in F.B. Taraporewala * ryer India Ltd.°
CASE PILOT directed the Central Government to constitute an authority to exam-
ine the relocation of industrial and residential areas under Section 3(3),
Environment (Protection) Act, 1986 and the Maharashtra Regional and
Town Planning Act [S. 46].
In M.C. Mehta v. Union of India’, the court declared that extraor-
dinary situation demands extraordinary remedies. Since vast devasta-
tion has been caused by indiscriminate mining in Aravali Hill range,
4. (2012) 4 SCC 629: AIR 2012 SC 1386; In this case the complaint was
made of the
illegal mining going on in the States of Haryana, U.P. and Rajasthan and
against the
notification of the State of Haryana for the auction of extraction of minor
minerals,
gravel and sand in the district of Panchkula.
S. Like river stability, flood risk, environmental degradation, loss
of habitat, decline in
biodiversity.
6. (1996) 6 SCC 58: AIR 1997 SC 1846. In this case chemical
factories were located in
populated area (Thane, Mumbai) and these factories put the
life of the residents in
jeopardy in view of probable accident in the area.
7. (2009) 6 SCC 142.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 163

complete ban is the need of time. The ban was justified in view of the
severe degradation of land and ecology of the area. Further, focus of the
court should not be on individual cases, but it should take macro view
of the situation.
Rule 5 of the Environment (Protection) Rules, 1986 provides for a list
of different factors which must be taken into account by the government
while prohibiting or restricting the location of an industry, operation or
process. Thus, the government must keep in view the standard of quality
of environment laid down for the area, maximum allowable limits of
various pollutants including noise, biological diversity of the area which
needs to be preserved, and proximity of human settlements, etc. Various
notifications have also been issued by the Central Government under
Section 3(1)(z)(v), Environment (Protection) Act, 1986 and Rule 5(3)
of the Environment Protection Rules, 1986; for example, the Coastal
Regulation Zone (CRZ) notification dated 19 February 1991, EIA notifi-
cation dated 14 September 2006. The State Pollution Control Board can
also impose condition like, to develop green belt around the industrial
area or industry.°
VI. Laying down procedures and safeguards for the prevention of
accidents which may cause environmental pollution and remedial meas-
ures for such accidents.—It authorises the government a) to provide
“preventive measures”, and b) to check the environmental pollution and
procedure and safeguards for the prevention of accidents; for example,
the Manufacture, Storage and Import of Hazardous Chemical Rules,
1989 provide the duties of authorities and preparation of “on-site emer-
gency plan”, “off-site emergency plan” to deal with likely major acci-
dents in the industry and to inform persons who are likely to be affected
in case of major accidents.
Rule 16 of the Hazardous Wastes (Management and Handling) Rules,
1989 provides that the occupier, transporter and operator of a facility
shall be liable for damages caused to the environment resulting due to
improper handling or disposal of hazardous wastes. It also states that
the occupier and operator of a facility shall also be liable to reinstate or
restore damaged or destroyed elements of the environment.
VII. Laying down procedures and safeguards for the handling of
hazardous substances.—Various rules notified on various occasions
have laid down the procedures and safeguards in handling of hazard-
ous substances; for example, the Hazardous Wastes (Manufacture and
Handling) Rules, 1989; Manufacture, Storage and Import of Hazardous
Chemicals Rules, 1989; Bio-Medical Waste (Management and Handling)
Rules, 1998; the Hazardous Micro-organism Rules, 1989; Municipal
Solid Waste (Management and Handling) Rules, 1999.

8. See, Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575.
 164 ENVIRONMENTAL LAW [CHAP.
b 2

In Research Foundation for Sciencev.Union of India’, the Supreme

CASE PILOT Court has directed the government to formulate a comprehensive code
incorporating the recommendations of the Expert Committee constl-
tuted by the court for the ship breaking industry.
VIII. Examination of such manufacturing processes, materials and
substances as are likely to cause environmental pollution.—This also
provides for preventive action on the part of government relating to pro-
cesses, materials and substances which are likely to damage the envi-
ronment, causing environmental pollution. In the exercise of this power
the Central Government has recently notified “the Recycled Plastics
Manufacture and Usage Rules, 1999”.'°
IX. Collection and dissemination of information in respect of mat-
ters relating to environmental pollution.—In M.C. Mehta v. Union of
India", the court observed that law regulates human conduct and for
this there must be appropriate awareness about the law. Therefore, ade-
quate measures should be taken to make people aware. “Keeping the
citizens informed is an obligation of the government.” The prayer of the
petitioner was accepted and directions were given by the Supreme Court
for mass awareness through slide shows, radio, and TV programmes on
environment. Direction was also given to the government that environ-
ment be made a compulsory subject at school level and be taught at all
levels of education.
The Supreme Court has also made clear that considering the impor-
tance of the plant and need of sustainable development in public inter-
est, while exercising its powers under Rule 5(1)(v) of the Environment
(Protection) Rules, 1986, the authorities can order to shift the location
of the plant/industry at any stage, without closing down the plant/
industry.!”
The Orissa High Court also directed that “the subject of environment
protection may be made compulsory at school, college and university
levels”; and “the press and media should play a constructive role to high-
light disastrous effects of noise pollution and its remedy”.!3 The case was
related to noise produced by loudspeakers and fireworks.
Sub-section 3 of Section 3 empowers the Central Government to
constitute an authority or authorities for the purpose of exercising or
performing such of the powers and functions, including the power to
give directions relating to the matter mentioned (in sub-section 2) above.

9. (2007) 8 SCC 583: AIR 2007 SC 3118. The case involved the breaking of Clemen
ceau
Ship at Alang Ship breaking yard as it was alleged that it was loaded with
asbestos.
10. Vide S.O. 705(E), dt. 2-9-1999 published in the Gaz. of India, dt.
2-9-1999.
11. (1992) 1 SCC 358: AIR 1992 SC 382.
12. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC
575.
13. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000
Ori 70.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 165

The Central Government will have supervision and control over such
authority or authorities. Such authority or authorities shall take neces-
sary measures as the circumstances demand.
In a recently decided case—Samaj Parivartana Samudaya v. State
of Karnataka", the court appointed a Central Empowered Committee
(CEC) to submit a report on illegal mining in the Bellary region of the
State of Karnataka and also accepted the findings and recommendations
of the committee.
In M.C. Mehta v. Union of India'*, the Supreme Court of India
ordered to constitute a committee, under Section 3, sub-clause (3),
headed by Shri Bhure Lal to look into the traffic hazards and problems
in the National Capital Region with a comprehensive authority to deal
with the entire matter relating to environmental pollution including traf-
fic safety laws.
The Supreme Court also directed the Central Government to consti-
tute an authority under Section 3(3) to examine the relocation of indus-
trial and residential areas under Section 46, Maharashtra Regional and
Town Planning Act so that industrial pollution has the minimum effect
on the residents of the area. The authority so constituted was asked to
submit its report within a period of three months.
In pursuance of the judgment of the Supreme Court in Indian Council
for Enviro-Legal Action v. Union of India'®, the Central Government
constituted “an authority to be known as Maharashtra Coastal Zone
Management Authority” vide notification dated 26 November 1998.
This authority was empowered to take certain steps to protect and
improve the quality of coastal environment and to prevent, abate and
control environmental pollution in coastal areas of the State, including
enquiry into the cases of violation of the provisions of the Environment
(Protection) Act. The working of the Coastal Zone Authority was exam-
ined by the Bombay High Court in a later case.”
Kuldip Singh J, lamenting on the inaction of the Central Government
regarding the appointment of the “authority or authorities” under
Section 3(3), Environment (Protection) Act, 1986, observed:
It is thus obvious that the Environment Act contains useful provisions for
controlling pollution. 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

14. (2013) 8SCC 154: AIR 2013 SC 3217; later on Union ofIndia also appointed a Central
Empowered Committee by a Gaz. Noti. dt. 17-9-2002 under S. 3(3), Environment
(Protection) Act, 1986 for a period of five years.
15. (1998) 2 SCC 435: AIR 1998 SC 617.
16. WP (C) No. 664 of 1993, decided on dt. 21-8-1998 (SC).
17. Sneha Mandal Coop. Housing Society Ltd. v. Union of India, AIR 2000 Bom 121.
 166 ENVIRONMENTAL LAW [CHAP.

has been constituted by the Central Government. The work which was
required to be done by an authority in terms of Section 3(3) read with other
provisions of the Act is being done by this Court and 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."
The above observation was made in Vellore Citizens’ Welfare Forum v.
Union of India'’, in which it was alleged that tanneries were discharging
their untreated effluents into the river Palar which was the main source
of water for the residents of the North Arcot Ambedkar District area.
Thus, the untreated effluents of tanneries not only created a problem
of drinking water, but, due to the highly toxic nature of the effluents, it
rendered the land of the area unfit for cultivation. The Supreme Court
came down heavily on the Central and State Governments to constitute
an authority under Section 3(3) of the Act and to confer on such author-
ity all powers necessary to deal with the situation created by tanneries
and other polluting industries of Tamil Nadu, including the power to
issue directions under Section 5 of the Act, the court declared that “the
authority so constituted shall implement ‘the precautionary principle’
and the ‘polluter pays principle’”; the authority so constituted by the
Central Government will take the help of experts and hear industrialists
to implement the abovementioned principles; the authority was further
authorised to determine and award compensation and to recover compen-
sation for loss to the ecology of the area, and frame a scheme to reverse
the degraded ecology of the area. Such scheme framed by the authority
shall be implemented by the State Government under the supervision of
the Central Government. The Supreme Court also recommended that the
Chief Justice of Tamil Nadu High Court to constitute a “Green Bench”
to deal with environmental pollution cases, as they were already func-
tioning in the states of West Bengal and Madhya Pradesh.
The abovementioned cases were quoted with approval in A.P. Pollution
Control Board v. M.V. Nayudu?® by the Supreme Court, which reiter-
ated to designate “authority” under Section 3(3) and other laws with
judicial and other technical members (scientist or group of scientists or
high-ranking officers) “to help a proper and fair adjudication of disputes
relating to environment and pollution”. Such authority was appointed by
the Indian Government in the State of Tamil Nadu under Section 3(3)
named, “Loss of Ecology (Prevention and Payment of Compensation)
Authority” on 30 September 1996. The court also suggested that the
Indian Government should make appropriate amendments in environ-
mental statutes, rules and notifications to set up “environmental courts”
on regional basis with one professional judge and two experts drawn
18. Vellore Citizens’ Welfare Forum vy. Union of India, (1996)
5 SCC 647, 665.
19. Ibid, 66s. ;
20. (1999) 2 SCC 718: AIR 1999 SC 812.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 167

from the ecological science research group, keeping in view the nature
of the case.
In S. Jagannath v. Union of India?! (S. Jagannath), the Supreme Court
also directed the Central Government to constitute “an authority” under
Section 3(3) and confer all powers necessary to protect the ecologically
fragile coastal area, sea shore, waterfront and other coastal areas, espe-
cially to deal with the situation created by shrimp culture industry in
those areas.
The National Environment Tribunal under the National Environment
Tribunal Act, 1995 and the National Environment Appellate Authority
under the National Environment Appellate Authority Act, 1997 were
constituted by the Central Government exercising the powers conferred
under Section 3(3), Environment Protection Act, 1986.
The Supreme Court created/constituted CEC in T.N. Godavarman
Thirumulpad (50) v. Union of India? (vide its order 9 May 2002) as an
interim body and it was also mentioned that this interim body shall work
until a statutory authority under Section 3(3), Environment (Protection)
Act, 1986 is created by the government. Thus the CEC was first con-
stituted as interim body by the orders of the court (dated 9 May 2002)
but, later on, the Central Government published in a Gazette dated 17
September 2002 the constitution of the CEC for five years. The Supreme
Court also determined its extent of power by its orders dated 14 December
2007” and from time to time particular task work was assigned to CEC.
Since then it was working and submitting its report and recommenda-
tions to the court. It is assisting the court in environmental matters for
over a decade. For example, CEC was assigned to examine and give its
report on illegal mining which were causing enormous damage to natu-
ral wealth in some districts of the State of Karnataka. Its report and rec-
ommendations was accepted by the Supreme Court.’* The credibility of
CEC was discussed by the court in Samaj Parivartan Samudaya v. State
of Karnataka’ and found nothing wrong with it. Moreover it declared CASE PILOT

that the court cannot be constrained by the restraint of procedure if the

activity in question adversely affects/causes environmental degradation
at a large scale. Many decisions of the Supreme Court were based on the
recommendations of the CEC.*°

21. (1997) 2 SCC 87: AIR 1997 SC 811.

22. (2013) 8 SCC 198.
23. T.N. Godavarman Thirumulpad v. Union ofIndia, (2013) 8 SCC 204, 206; the terms
were re-determined by the court after the expiry of five years, it is still continuing.
24. Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154: AIR 2013
Stl 3217.
25. Ibid, (SCC) 178-80.
26. Also see, M.C. Mehta v. Union of India, (2009) 6 SCC 142; in this case the CEC
recommended for the complete ban on mining activities in Aravalli Hill area and it
was accepted by the Supreme Court.
 ENVIRONMENTAL LAW [c HAP.
168

and comple-
Section 6, Environment (Protection) Act is a corollary
ment to
mentary to Section 3. Section 6 empowers the Central Govern
ion 3.
make rules in respect of all or any of the matters referred to in Sect
fica-
It can be done by making a notification in the Official Gazette noti
tion. Abovementioned schedules have been notified in accordance with
the provisions of Section 6 of the Act as provided by Section gy. Thus,
Section 6 provides the procedure to make rules for the quality of environ-
ment and to prevent, control and abate environmental pollution.
6. Rules to regulate environmental pollution.—(t) The Central
Government may, by notification in the Official Gazette, make rules in
respect of all or any of the matters referred to in Section 3. |
(2) In particular, and without prejudice to the generality of the foregoing
powers, such rules may provide for all or any of the following matters,
namely:—
(a) the standards of quality of air, water or soil for various areas and
purposes;
(b) the maximum allowable limits of concentration of various envi-
ronmental pollutants (including noise) for different areas;
(c) the procedures and safeguards for the handling of hazardous
substances;
(d) the prohibition and restrictions on the handling of hazardous sub-
stances in different areas;
(e) the prohibition and restrictions on the location of industries and
the carrying on of processes and operations in different areas;
(f) the procedures and safeguards for the prevention of accidents
which may cause environmental pollution and for providing for
remedial measures for such accidents.

The Central Government, while exercising its powers, have published

various standards to maintain the quality of air, water, soil and for
the safe handling, management and disposal of hazardous substances.
The Hazardous Wastes (Management and Handling) Rules, 1989; the
Manufacture, Storage and Import of Hazardous Chemicals Rules,
1989; the Chemical Accidents (Emergency Planning, Preparedness
and Response) Rules, 1991; the Bio-Medical Waste (Management &
Handling) Rules, 1998; the Recycled Plastics Manufacture and Usage
Rules, 1999 and the Noise Pollution (Regulation and Control) Rules,
2000 have been notified by the Central Government in the exercise of the
powers conferred under this section.
This section may also be read in conjunction with Section 25 of the
Act which also empowers the Central Government to make rules “for
carrying out the purposes of this Act”.
Important declaration of Section 6(2)(a) is to make rules as to the
standard of quality of air, water or soil. It is something in addition to the
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 169

pollution free environment or damage to the environment?’ which is a

part of Article 21 of the Constitution.
Another important direction of Section 3(2)(vi) is to provide reme-
dial measures for environmental pollution accidents. The Public Liability
Insurance Act, 1991 is a welcome venture of Parliament in this direction.
This provides for “no-fault liability” in case of industrial accident and
relief which shall immediately be provided to the victims of such accident.
This relief shall not bar the right of the victims to claim compensation.

3.13 Appointment of officers and their powers and functions

Section 4 authorises the Central Government to appoint officers with
proper designation as it thinks fit and entrust them with powers and
functions. Such appointed officers are under general control of 1) Central
Government; or 2) authority or authorities constituted under Section 3(3);
or 3) any other authority or officer as the Central Government provides.
In the exercise of this power, the Central Government has appointed var-
ious officers in Central and State Pollution Control Boards.
Section 5 of the Act empowers the Central Government to issue direc-
tions to any person/officer/authority appointed under Section 4 of the
Act.
1. Such directions shall be in writing.
2. Such person/officer/authority shall be bound to comply with the
directions.
3. Such directions shall include the power to issue directions regarding
(a) the closure, prohibition or regulation of any industry, opera-
tion or process; or
(b) stoppage or regulation of the supply of electricity or water, or
any other service.
In Madireddy Padma Rambabu v. District Forest Officer’, the court
made it clear that use of agricultural land for prawn/shrimp culture and
use of underground water for such purpose adversely affected the right
of neighbours, as water had turned saline affecting potable water and
chemicals used for this culture had adversely affected the fertility of the
land. Thus, the court declared that the forest officer had rightly inter-
fered. The State can order for the closure of such shrimp farms.
Rule 4 of the Environment (Protection) Rules, 1986 must be read with
Section 5 of the Environment (Protection) Act. Rule 4 provides the pro-
cedure to issue directions under Section 5 of the Act.

27. V. Lakshmipathy v. State of Karnataka, AIR 1992 Kar 57.

28. AIR 2002 AP 256.
170 ENVIRONMENTAL LAW [c HAP.

Some of the essential features of this rule are as follows:

1. The direction must be in writing. aa
in
>. The direction must specify the nature of action and time with
which the person (against whom direction is issued), officer or
authority has to comply with it.
3. It must give an opportunity of not less than 15 days from the date
of service to file objections.
4. If the direction is regarding the stoppage or regulation of electricity
or water or any other service, the carrying of any industry, opera-
tion or process, a copy of the same be endorsed to the occupier of
industry, etc. |
5. If an occupier had already been heard, a copy of the direction will
not be endorsed to him.
6. The Central Government shall within a period of 45 days from the
date of hearing/receipt of objection, confirm, modify or decide not
to issue the proposed directions.
7. Procedure to serve the notice of direction has also been prescribed
under Rule 4(6) as has been provided for the service of summons.
8. In view of the likelihood of grave injury to the environment, proce-
dure to provide an opportunity to file objections against proposed
direction can be dispensed with. Reasons for the same must be
recorded in writing.
In Mahabir Soap and Gudakhu Factory v. Union of India’, the Indian
Government issued a direction to the petitioner to close down the factory
and directed the authorities concerned to disconnect water and electric-
ity supply of the factory. These orders were assailed on the basis that the
direction was passed without giving reasonable opportunity of personal
hearing and without giving specific time to comply with the direction.
The industry was in a thickly populated area and was manufacturing
tobacco toothpaste. It was discharging untreated effluents resulting in
pollution of the water reservoir.
The Central Government issued a notice to the industry under
Section 5, Environment (Protection) Act, 1986 and gave 15 days to
comply with the directions or file objections. The managing partners
of the firm filed the objections within 15 days. Meanwhile, an enquiry
was also conducted in the factory under Sections 21, 25 and 26 of the
Water (Prevention and Control of Pollution) Act, 1974. After that the
Indian Government directed for the closure of the factory till adequate
pollution control measures were taken to ensure that no effluents were
discharged by the industry. The petitioner insisted that opportunity of
personal hearing must have been given to them, thus, it was denial of the
principles of natural justice.
29. AIR 1995 Ori 218.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 171

The court observed that neither Rule 4 nor any other rule provides
for an opportunity of hearing. Notice of 15 days is the only requirement
under the rules which was complied with. Thus, there was no denial of
the principles of natural justice. The Indian Government rightly gave the
directions under Section 5 of the Act.
A similar question was also dealt with by the Gujarat High Court
in Narula Dyeing and Printing Works v. Union of India*®. In this case
directions under Section 5 were issued by the Gujarat SPCB, to whom
powers were delegated by the Central Government. The Narula Dyeing
and Printing Works were discharging their untreated trade effluents into
the stream which was an irrigation canal. The State Government issued
directions under Section 5 to close down the factory. The petitioners
challenged the powers of the State Government and pleaded that oppor-
tunity of personal hearing was not provided to them. The court did not
accept the pleas as the Central Government could delegate its powers
to the State Government as has been provided under Section 23 of the
Act by notification in the Official Gazette. Further, the court declared
that the government is fully empowered to dispense with the opportunity
being given for filing objections against the proposed direction in such
cases of grave injury to the environment under provision of Rule 4(5). It
is intended to safeguard the environment from any grave injury to any
component of the environment.
_The Supreme Court made it amply clear in Sachidanand Pandey v.
State of W.B.*' that when it comes to the enforcement of fundamental CASE PILOT
Secs, the court will not leave it to policy-makers and will issue neces-
sary 1sepia dl Following it in its true spirit, the Kerala High Court**
issued the direction under Section 5, Environment (Protection) Act, 1986
and Section 17, Air (Prevention and Control of Pollution) Act, 1981. As
per report of the NEERI because of the presence of ammonia and SPM,
automobile pollution, there was air pollution in Cochin city area. In spite
of the directions of the court, the municipal corporation, SPCB and the
Central Pollution Control Board did not care to implement the reme-
dial measures to contain and control the air pollution. Since these direc-
tions were not carried out, therefore, this case came up as a PIL before
the High Court. The court issued detailed directions to the SPCB and
municipal corporation of Cochin to implement the recommendations of
NEERI to control the air pollution in the city, including the direction
to provide green belt barrier between the industrial zone and residential
sector without delay.

30. AIR 1995 Guj 185.

31. (1987) 2 SCC 295: AIR 1987 SC 1109.
32. V.S. Damodaran Nair v. State of Kerala, AIR 1996 Ker 8.
172 ENVIRONMENTAL LAW [<DHAP.

CHAPTER III

Prevention, Control and Abatement of Environmental Pollution

(Ss. 7 To 17]

To understand Chapter III we can divide it as follows:

1. Preventive measures to be taken by institutions (industry, operation
or process) —Sections 7, 8 and 9.
>. Powers of the Central Government or authority to control the pol-
lution—Sections ro and 11.
3. Laboratories and analysts and evidentiary value of their
reports— Sections 12, 13 and 14.
4. Prosecution and punishment— Sections 15, 16 and 17.

3.14 Preventive measures for industrialists, etc. |

Section 7 provides:
[N]o person carrying on any industry, operation or process shall discharge
or emit or permit to be discharged or emitted any environmental pollutant in
excess of such standards as may be prescribed.
Thus, Section 7 makes it a legal obligation/duty of a person having
an industry, operation or a process not to discharge any environmen-
tal pollutants, 7.e. solid, gaseous, liquid and noise, which exceeds the
standards prescribed under various schedules of the Act. Any discharge
or emission in excess of the permissible limits amounts to violation of
the Environment (Protection) Act and attracts punishment as provided
under Sections 15 to 17 of the Act. Thus, any activity which is or is likely
to injure any component of the environment has been prohibited by this
section.
Rule 3 of the Environment (Protection) Rules, 1986 provides that
environmental standards for emission or discharge of environmental pol-
lutants for the purpose of 1) protection and improvement of the quality
of the environment, and 2) the prevention and abatement of environ-
mental pollution have been specified in Schedules I, II, IV, VI and VII.
These specified standards can be made more stringent by the Central
Pollution Control Board looking at the specific nature, location and
gravity of adverse effects of the industry, process or operation. But the
Central Pollution Control Board has to record the reason in writing for
this purpose.
For example, the schedule given below prescribes standards of ambi-
ent air quality:
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 173

SCHEDULE VII

TABLE 3 National Ambient Air Quality Standards (NAAQS) [notified on 16 November 2009]33

Time Concentration in ambient air

i ibis otnoeehs steiunshe DSi 5 Cede vee SFvibaqzes eel wl ovede
Pollutant weighted Industrial, Ecologically sensitive Methods of measurement
average residential, rural _—_area (notified by
andotherarea Central Government)
Sulphur Dioxide Annual? 50 20 —Improved West and Gaeke
(S0,), g/m? 24 hours? 80 80 method
AEe emer arse vocsne ede aces ence ar sonenrennes sends cneusesesecesanessesssesesees sede ene sees cranes scseeegessceuscesecesenecesesesecacesssssees — Ultraviolet fluorescence

Nitrogen Dioxide Annual? 40 30 —Modified Jacob &

(NO.), ug/m? 24 hours? 80 80 Hochheiser (Na-Arsenite)

Particulate matter Annual? 60 60 —Gravimetric

(size less than 10 24 hours? 100 100 —TOEM
nore Ng OM =
Beta attenation
Particulate matter Annual? 40 40 —Gravimetric
(size less than 2.5 24 hours? 60 60 —TOEM
hm) orPM, yg/m? Rt? Pees | ——Beta attenuation
Ozone (0,) ug/m? = 8 hours? 100 100 —UV photometric
1 hour? 180 180 —Chemiluminescence
—Chemical method

Lead (Pb) g/m? Annual’ 0.50 0.50 —AAS/ICP method after

24 hours? 1.00 1.00 sampling on EPM 2000 or
equivalent filter paper
—ED-XRF using Teflon filter
Carbon Monoxide 8 hours? 2 2 —Non-Dispersive Infra Red

(CO) mg/m’ hour! : yee cid. OORT SpE oS Lea

Ammonia (NH,) Annual’ 100 100 —Chemiluminescence
ug/m? 24 hours? 400 400 —1ndophenol blue method
Benzene (C,H,) Annual? 5 5 —Gas chromatography based
ug/m? continuous analyzer
—Adsorption and Desorption
followed by GC analysis

Benzo (a) Pyrene Annual? 1 1 — Solvent extraction followed

(BaP)—particulate by HPLC/GC analysis
¢ tks Shenemp nde «4 Bee tpassse she ds 9estoe detesa00eNseinenss yap
phase only, ng/m’ Fade cdde iad add diaieds awanaban attend aedae apand> oo tap Agate iw asaembGs on sasae dyaleh he+ ansgapnads andd ev000s Bahan nines smnunas

Arsenic (As),ng/m? —Annual? 6 6 —AAS/ICP method after

sampling on EPM 2000 or
equivalent filter paper

ng/m? Annual
(Ni),el
‘Nick 20 20 —AAS/ICP method after
sampling on EPM 2000 or
equivalent filter paper
Oe
ee ee ee ee eee ee SRO

33. Subs. by G.S.R. 826(E), dt. 16-11-2009 (w.e.f. 16-11-2009).

 174. ENVIRONMENTAL LAW [CHAP.
? ,)

a Annual arithmetic mean of minimum 104 measurements in a year at a particular site taken twice a week 24 hourly at
uniform intervals.
b 24 hourly/8 hourly or one hourly monitored values, as applicable, shall be complied with 98 per cent of the time ina
year. 2 per cent of the time, they may exceed the limits but not on two consecutive days of monitoring. wy.
Note — Whenever and wherever monitoring results on two consecutive days of monitoring exceed the limits specified
above for the respective category, it shall be considered adequate reason to institute regular or continuous monitoring
and further investigation.

Prohibition of Section 7 shows that certain standards have to be main-

tained and a person or an industry cannot be permitted to cause dam-
age to the environment. In the Kamal Nath case**, the Supreme Court
declared that pollution, by its very nature, is a tort against the commu-
nity as a whole. Therefore, one who is guilty of causing pollution has
to pay damages (compensation) for restoration of the environment and
ecology.
In S. Jagannath>*, it was declared by the Supreme Court that setting
up of modern shrimp aquaculture farms, right on sea coast and construc-
tion of ponds and other infrastructure thereon is per se hazardous and
is bound to degrade marine ecology, coastal environment and aesthetic
uses of the sea coast. Therefore, they cannot be permitted to operate and
were ordered to be closed and demolished by the court. Further, they
were made liable to pay compensation to r) individuals, and 2) to reverse
the ecology of the area on the basis of the “polluter pays principle”.
Imposition of restrictions on the trade or operation of melting gold
and silver which was dangerous to health, life or property can be made
by the competent authority. In D.S. Rana v. Ahmedabad Municipal
Corpn.**, such melting of gold and silver in the thickly populated area of
Ahmedabad city was found to be a public nuisance and a health hazard
and damaging to the environment. The Commissioner of the munici-
pal corporation refused to renew the licence on this basis and the order
to shift to the industrial zone was found well within the powers of the
Commissioner. It was found that the levels of toxins like cadmium and
lead were very high in that area, which were detrimental to human health.
Kuldip Singh J, in M.C. Mehta v. Union of India*’, declared that “the
standards for sensitive area are stringent than the standards prescribed
for industrial and residential areas”. Thus, the Central Pollution Control
Board recommended that an area of five kms around the periphery of
a centre of tourism be notified as a sensitive area. The court, there-
fore, declared that mining activities in the vicinity of two tourist cen-
tres—Badkhal lake and Surajkund—caused considerable pollution in
the shape of noise and vibration. The ambient air quality of the area was
also affected by rock blasting, movement of heavy vehicles, operation of
34. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC
1997.
35. (1997) 2 SCC 87: AIR 1997 SC 811.
36. AIR 2000 Guj 45.
37. (1996) 8 SCC 462: AIR 1996 SC 1977.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 175

mining equipments, exhaust of gases from equipments and machinery

used for mining operations. The court directed to stop the mining activ-
ity, to develop a green belt at 1 km radius around the boundaries of the
two lakes, leaving another 800 mas a cushion to absorb the air and noise
pollution generated by mining operations.
In the Taj Trapezium case’, substantial level of sulphur dioxide and
particulate matter generated by various industries and the Mathura
refinery and vehicular traffic was found to be very high. Thus, it caused
“acid rain” resulting in the yellowing of the Taj Mahal. On this basis 292
industries were ordered either to switch over to gas, or close down, or
shift out of the Taj Trapezium.
In the Ganga Pollution case*’, it was observed by the Supreme Court
that water of river Ganga was highly toxic near Kanpur city—as the
tanneries were discharging their untreated effluents into the river, nine
nallahs of the city were discharging sewage effluent and sludge into the
river. This all polluted the water and the contents of iron, manganese
were very high from the ISI limits of river water and BOD and COD were
found very high than the prescribed limits. Therefore, the court held the
Kanpur Mahanagarpalika liable and also passed various directions to
prevent and control the pollution of Ganga river. Some of them are as
follows:
Prevention of waste accumulated at dairies from entering the river.
Increase of size of the sewers in labour colonies.
Construction of sufficient number of public latrines and urinals.
H
PY
BW Preventing the throwing of dead bodies or half-burnt bodies into
the river.
5. Installing treatment plants in tanneries and other factories of
Kanpur city.
6. Creating awareness of the importance of cleanliness and hazards of
pollution, observe “keep city/village clean week”.
Section 8 deals with the safe handling of hazardous substances. It
provides:
No person shall handle or cause to be handled any hazardous substance
except in accordance with such procedure and after complying with such
safeguards as may be prescribed.
Section 7 deals with the general standards set for the discharge/emission
of environmental pollutants, whereas Section 8 deals with specific types
of pollutants—hazardous substances—and directs to comply with pre-
scribed procedure and to abide by the safeguards provided for under the
rules specially notified for them.
38. M.C. Mehta v. Union of India, (1997) 2 SCC 353; see also, Vellore Citizens’ Welfare
Forum v. Union of India, AIR 1996 SC 2715.
39. M.C. Mehta v. Union of India, (1988) 1 SCC 471.
 [CHAP.
176 ENVIRONMENTAL LAW

There are two requirements for handling hazardous substances:

the Act or
1. The person has to follow the procedure prescribed by
rules made thereunder.
-
2. The person handling the hazardous substance has to take neces
sary safeguards as prescribed.
Various rules dealing with procedure and safeguards have been notified
by the Central Government from time to time. These are as under:
t. Hazardous Wastes (Management, Handling and Transboundary
Movement) Rules, 2008
2. Manufacture, Storage and Import of Hazardous Chemicals Rules,
1989
3. Hazardous Micro-Organism Rules, 1989
4. Chemical Accidents (Emergency Planning, Preparedness and
Response) Rules, 1996
Bio-Medical Waste (Management and Handling) Rules, 1998
Plastic Waste (Management and handling) Rules, 2011
Municipal Solid Waste (Management and Handling) Rules, 1999
es E-waste (Management and Handling) Rules, 2010
Bs
A “cradle to grave” approach has been adopted to handle hazardous
substances. The Hazardous Wastes (Management and Handling) Rules,
1989 provide for the liability and duties of the occupier and operator;
authorisation to deal with them; packaging, labelling and transport
of hazardous wastes; disposal site; operation and closure of land; full
maintenance of collection, reception, treatment, transport, storage and
disposal; accident reporting and follow-up; import and export proce-
dure and the extent of liability under it. Similarly the Bio-Medical Waste
(Management and Handling) Rules provide for the segregation, packag-
ing, transportation, storage and modes of disposal of biomedical wastes
generated from hospitals, clinics, laboratories, dispensaries, blood banks
and veterinary institutions. These rules have been framed looking to
the bad effects of biomedical wastes. There are several cases where the
court has taken necessary action against an industry, etc., which have
not taken proper safeguards before dealing with hazardous substances.
Some of the important cases are given below.
In M.C. Mehta v. Union of India*®, a cluster of tanneries at Jajmau in
Kanpur were discharging their untreated effluents into the river Ganga.
As a result of this the water of the river Ganga became highly toxic and
unfit for any use. The court ordered for the closure of the industries
till they installed primary treatment plants to treat the toxic effluents

40. (1987) 4 SCC 463; also see, Jajmau Tanner’s Assn., re, (2000) 9 SCC 499: AIR 2000
SG 296:
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 177

and can continue as long as the primary treatment plants were in sound
working order. The court observed:
Just like an industry which cannot pay minimum wages to its workers cannot
be allowed to exist, a tannery which cannot set up a primary treatment plant
cannot be permitted to continue to be in existence for the immense adverse
effect on the public at large which ... outweigh any inconvenience that may
be caused to the management and the labour employed by it on account of
its closure.
Thus, order for installation of primary treatment plants is a safeguard to
be undertaken while dealing with the tannery industry.
Similarly, the court also ordered the closure of the Shriram Food and
Fertiliser Industry where there was a leakage of oleum gas from the indus-
try on 5 December 1985 as a result of which one person died and sev-
eral persons were taken ill. When the industry prayed for restarting, the
Supreme Court allowed it with certain stringent measures to be adopted
by it.*! Such conditions to restart the industry included appointment of
an operator for the safety device; Chief Inspector of factories to inspect
the factory at least once a week; and the Central Pollution Control Board
should ascertain that the industry complies with the effluent discharge
and emission standards prescribed in the consent order. It has to consti-
tute “workers safety committee”, publicise the effects of chlorine and
appropriate post-treatment measures, and ensure that the workers use
safety devices like gas masks, safety belts, etc.
The historical judgment of the Supreme Court in Vellore Citizens’
Welfare Forum* related to discharge of untreated toxic effluents from
tanneries. A total of 584 industries of the North Arcot Ambedkar dis-
trict were polluting the water of river Palar and causing land pollution by
enormous discharge of untreated effluents. It was stated in the petition
that 170 types of chemicals were used in the chrome process including
sodium chloride, sodium sulphate, sulphuric acid, chromium sulphate.
The effluents spoiled the physico-chemical properties of the soil and con-
taminated the groundwater by percolation. The Supreme Court issued
comprehensive directions for maintaining standards as prescribed by
the schedules to the Environment (Protection) Act, 1986 and ordered
installation of pollution control devices before they continue to work
in the area. Till the installation of the treatment plants and till they got
consent order from the Pollution Control Board, tanneries were closed
down. It was also directed that no new industry would be allowed to
be set up in the area. It was ordered that unless and until tanneries and
other industries comply with the standards stipulated by the Pollution
Control Board regarding total dissolved solids (TDS) and got approved
41. M.C. Mehta v. Union ofIndia, (1986) 2 SCC 325: AIR 1987 SC 982.
42. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647: AIR 1996
S' 2775:
178 ENVIRONMENTAL LAW |CHAP.

by NEERI. thev would not be allowed to operate. Further, the court

directed the Central Government to constitute an “authority” under
Section 3(3), Environment (Protection) Act, 1986 with an expert in the
field of pollution control and environmental pollution to monitor the
process.
The Andhra Pradesh High Court declared that those who are engaged
in construction work particularly of multi-storied buildings, cannot be
permitted to commit nuisance by letting out effluents from their drainage
system. It directed to stop the offensive effluent as it was causing pollu-
tion and injury to health.* In this case, the Ajay Construction Ltd. con-
structed a multi-storey building but did not construct septic tanks and
soakage pits. It connected its sewage system to the underground pipelines
of the municipality, causing the sewage water to flow outside causing
pollution and created a big cesspool near a university’s hostel.
In Kinkri Devi v. State of H.P.**, though it was a case of indiscriminate
blasting for extracting limestone in Shivalik Hills in Sirmaur district, the
court observed that to protect people inhabiting the vulnerable areas
from the hazardous consequences of the arbitrary exercise of granting
mining Operations is a constitutional goal to be achieved as it is violative
of Articles 14 and 21 of the Constitution. The court closed down mining
operations in the area and directed the government to evolve a long term
plan based on scientific study to regulate the mining operations of min-
erals in the State without detriment to environment, ecology and natural
wealth and resources, and the local people. Thus, it was a direction from
the court to evolve a safe and environmentally sound procedure in this
area hitherto untouched.
The Supreme Court has made a very significant judgment in Indian
Council for Enviro-Legal Action vy. Union of India*. In this case, five
factories were producing hyaluronic acid (H-acid), a toxic chemical—‘n
Bichhari village in Udaipur district. These industrial units were discharg-
ing highly toxic untreated effluents—iron-based and gypsum based
sludge. It resulted in untold misery to the villagers, long lasting damage
to the soil, to the underground water and to the environment in general.
Interestingly, the production of H-acid, an azo dye, was banned in the
West in 1978. The water of the 60 wells spread over an area of 350 hec-
tares became red and unfit for use and the land became infertile. The
court initially ordered the closure of the factories and later on ordered
them to pay for the reversal of the ecology of the area. The court also
Suggested to strengthen the environment protection machinery and envi-
ronmental auditing apart from setting up of green courts.
43. Ajay Constructions v. Kakateeya Nagar Coop. Housing Societ
y Ltd., AIR 1991
AP 294.
44. AIR 1988 HP 4.
45. (1996) 3 SCC 212: AIR 1996 SC 1446.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 179

All the abovementioned cases were quoted with approval in the Kamal
Nath case**. In this case, a motel was constructed by Mr Kamal Nath,
former Union Environment Minister, in the name of M/s Span Motel
Private Ltd. on the banks of river Beas and construction was also done in
the river-bed. Consequently, the banks of river Beas had to be removed
and reversed. The motel was discharging its untreated effluents/wastes
into the river and did not conform to the prescribed standards. The court
ordered the motel not to discharge its untreated effluents/wastes into the
river and the Himachal Pradesh Pollution Control Board not to permit
the same. Further, the court declared that industries, including the hotel
industry have to abide by the provisions of the Environment (Protection)
Act, 1986 and the rules, to give effect to the provisions of the Act. These
rules include the Hazardous Wastes (Management and Handling) Rules,
1989, the Environment (Protection) Rules, 1986, etc. “These rules must
be complied with and non-compliance would attract punishment as per
the provisions of the various environmental statutes.” Further, the motel
was ordered to construct a new boundary wall and not to encroach upon/
cover/utilise any part of the river basin.
In the Taj Trapezium case*’, the Supreme Court ordered that either the
industries located in the Taj Trapezium area should close down/shift, or
switch over to gas as industrial fuel. It was suggested as one of the safe-
guards to stop acid rain (sulphur dioxide) degrading ambient air quality
and yellowing of the marble of the Taj Mahal. Various incentives were
also provided in the judgment to adopt the suggested safeguards.

3.15 Furnishing of information

Section 9 makes it obligatory to furnish information to the authority
about the 1) discharge of environmental pollutants in excess of the pre-
scribed standards, or 2) apprehension of such occurrence due to accident,
or occurrence of some unforeseen event.
The section provides as follows:
9. Furnishing of information to authorities and agencies in certain
cases. —(1) Where the discharge of any environmental pollutant in excess
of the prescribed standards occurs or is apprehended to occur due to any
accident or other unforeseen act or event, the person responsible for such
discharge and the person in charge of the place at which such discharge
occurs or is apprehended to occur shall be bound to prevent or mitigate the
environmental pollution caused as a result of such discharge and shall also
forthwith—
(a) intimate the fact of such occurrence or apprehension of such
occurrence; and

46. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997.
47. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353: AIR 1997 SC 734.
 180 ENVIRONMENTAL LAW [CHAP.

(b) be bound, if called upon, to render all assistance,

to such authorities or agencies as may be prescribed. ;
(2) On receipt of information with respect to the fact or apprehension of
any occurrence of the nature referred to in sub-section (1), whether through
intimation under that sub-section or otherwise, the authorities or agencies
referred to in sub-section (1) shall, as early as practicable, cause such reme-
dial measures to be taken as are necessary to prevent or mitigate the environ-
mental pollution.
(3) The expenses, if any, incurred by any authority or agency with respect
to the remedial measures referred to in sub-section (2), together with interest
(at such reasonable rate as the Government may, by order, fix) from the date
when a demand for the expenses is made until it is paid, may be recovered
by such authority or agency from the person concerned as arrears of land
revenue or of public demand.
Basically, this section casts a duty on the persons responsible for dis-
charge or in charge of a place to supply the information regarding envi-
ronmental pollution even when there is a likelihood of occurrence of
accident or unforeseen event. It further provides that as soon as such
information is communicated, the “authority” shall take remedial meas-
ures—which are “necessary” under the circumstances to 1) prevent, and
2) mitigate the environmental pollution.
In Indian Council for Enviro-Legal Action v. Union of India*’, the
Supreme Court ordered for recovery of the amount (# 4 crores) for reme-
dial measures, including the removal of sludge from the area and revers-
ing the ecology of the area.

3.16 Control measures: powers of the Central Government

Section 10 deals with the powers of any person empowered by the
Central Government for entry and inspection and Section rx empowers
that person to take sample and the procedure to be followed for taking
sample. Power to establish environmental laboratories and government
analysts have been provided under Sections 12 and 13 respectively.
10. Powers of entry and inspection.—(t1) Subject to the provisions of this
section, any person empowered by the Central Government in this behalf
shall have a right to enter, at all reasonable times with such assistance as he
considers necessary, any place—
(a) for the purpose of performing any of the functions of the Central
Government entrusted to him;
(b) for the purpose of determining whether and if so in what manner, any
such functions are to be performed or whether any provisions of this
Act or the rules made thereunder or any notice, order, direction
or
authorisation served, made, given or granted under this Act is being
or has been complied with;

48. (1996) 3 SCC 212: AIR 1996 SC 1446.

6] THE ENVIRONMENT (PROTECTION) ACT, 1986 181

(c) for the purpose of examining and testing any equipment, industrial
plant, record, register, document or any other material object or for
conducting a search of any building in which he has reason to believe
that an offence under this Act or the rules made thereunder has been
or is being or is about to be committed and for seizing any such equip-
ment, industrial plant, record, register, document or other material
object if he has reasons to believe that it may furnish evidence of the
commission of an offence punishable under this Act or the rules made
thereunder or that such seizure is necessary to prevent or mitigate
environmental pollution.
(2) Every person carrying on any industry, operation or process of han-
dling any hazardous substance shall be bound to render all assistance to the
person empowered by the Central Government under sub-section (1) for car-
rying out the functions under that sub-section and if he fails to do so without
any reasonable cause or excuse, he shall be guilty of an offence under this
Act.
(3) If any person wilfully delays or obstructs any person empowered by the
Central Government under sub-section (1) in the performance of his func-
tions, he shall be guilty of an offence under this Act.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974),
or, in relation to the State of Jammu and Kashmir, or any area in which that
Code is not in force, the provisions of any corresponding law in force in that
State or area shall, so far as may be, apply to any search or seizure under this
section as they apply to any search or seizure made under the authority of
a warrant issued under Section 94 of the said Code or, as the case may be,
under the corresponding provision of the said law.
This section empowers the Central Government to designate/empower
any person to exercise the following powers of entry and inspection:
1. Such a person can have a right of entry at “all reasonable times”.
2. Such a person can enter “any place”.
3. Such a person can take such necessary assistance for the said pur-
pose as he considers necessary.
4. Such a person can enter for the following purposes into any place:
(a) For the purpose of performing any of the functions as
entrusted by the Central Government.
(b) For ascertaining compliance with the provisions of the Act/
directions issued; to determine whether and in what manner
any provision or rule is made under the Act; and to know
whether the notice, order, direction or authorisation given/
granted have been complied with, or rule made under the Act
and to know whether the notice, order, direction or authori-
sation given/granted have been complied with.
(c) For the purpose of examining or testing the following:
i) equipment, ii) industrial plant, 17) record, iv) register,
v) document, and vi) other material object.
 182 ENVIRONMENTAL LAW |CHAP.

(d) For conducting search of any building in which he has reason

to believe that an offence under the Act: i) has been, or 7/) is
being, or iii) is about to be committed. |
(ec) For seizing any equipment, industrial plant, record, register,
document, or other material object which may furnish evi-
dence of the commission of an offence i) under the Act, or
ii) the rule made thereunder, or iii) that such seizure is neces-
sary to prevent or mitigate environmental pollution.

3.17 Duty of the person carrying on any industry,

operation or process, etc.
Section ro, clause (2) makes it a “mandatory duty” of all the persons car-
rying on any industry, operation or process or handling any hazardous
substances to render all assistance to the person so empowered by the
Central Government while carrying out the functions provided under
Section 10, clause (1) of entry and inspection. But
1. if the person carrying on an industry, operation or process, etc.,
does not render his help as envisaged, he would be guilty of an
offence under this Act;
2. similarly, if any person wilfully delays or obstructs any person so
empowered, he shall be guilty of an offence under the Act.
It is important to note that penalty for the contravention of the provi-
sions of the Act, including the violation/non-compliance with the above
provisions, have been provided under Section 15 of the Act.

3.18 Procedure for search and seizure

Sub-section (3) of Section 10 provides that the procedure as provided
under the provisions of CrPC shall be applied in cases of search and sei-
zure, as are applied for the authority of a warrant issued under Section 94
of the said Code.
Such a procedure for search and seizure has been mentioned under
Sections 94, 100 and 165 CrPC.
But the Supreme Court in the famous case of Rural Litigation and
Entitlement Kendra v. State of U.P.*° made it clear that “the procedural
law is not available as a defence when a matter of grave public impor-
tance is for consideration before the court”. And a plea of res judicata
could not be entertained only because the case started in 1983
and
the Environment (Protection) Act came into force in November
1986.
Meanwhile, various reportable orders were given by the court. Thus,
the

49. 1989 Supp (1) SCC 504: AIR 1988 SC 2187.

6] THE ENVIRONMENT (PROTECTION) ACT, 1986 183

Act of 1986 cannot take away the jurisdiction of the Supreme Court to
deal with a case of this type. The court declared:
Ordinarily the court would not entertain a dispute for the adjudication of
which a special provision has been made by law but the rule is not attracted
in the present situation in this case. Besides, it is a rule of practice and pru-
dence and not one of jurisdiction.*°

3.19 Power and procedure to take samples

11. Power to take sample and procedure to be followed in connection
therewith.—(1) The Central Government or any officer empowered by it in
this behalf, shall have power to take, for the purpose of analysis, samples of
air, water, soil or other substance from any factory, premises or other place
in such manner as may be prescribed.
(2) The result of any analysis of a sample taken under sub-section (1) shall
not be admissible as evidence in any legal proceeding unless the provisions of
sub-sections (3) and (4) are complied with.
(3) Subject to the provisions of sub-section (4), the person taking the sam-
ple under sub-section (1) shall—
(a) serve on the occupier or his agent or person in charge of the place, a
notice, then and there, in such form as may be prescribed, of his inten-
tion to have it so analysed;
(6) in the presence of the occupier or his agent or person, collect a sample
for analysis;
(c) cause the sample to be placed in a container or containers which shall
be marked and sealed and shall also be signed both by the person
taking the sample and the occupier or his agent or person;
(d) send without delay, the container or the containers to the labora-
tory established or recognised by the Central Government under
Section 12.
(4) When a sample is taken for analysis under sub-section (1) and the
person taking the sample serves on the occupier or his agent or person, a
notice under clause (a) of sub-section (3), then,—
(a) in a case where the occupier, his agent or person wilfully absents him-
self, the person taking the sample shall collect the sample for analysis
to be placed in a container or containers which shall be marked and
sealed and shall also be signed by the person taking the sample, and
(b) in a case where the occupier or his agent or person present at the
time of taking the sample refuses to sign the marked and sealed con-
tainer or containers of the sample as required under clause (c) of
sub-section (3), the marked and sealed container or containers shall
be signed by the person taking the samples,
and the container or containers shall be sent without delay by the person tak-
ing the sample for analysis to the laboratory established or recognised under .
Section 12 and such person shall inform the Government Analyst appointed
or recognised under Section 13 in writing, about the wilful absence of the
50. Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504:
AIR 1988 SC 2187, 2195.
 [CHAP.
184 ENVIRONMENTAL LAW

sign the
occupier or his agent or person, or, as the case may be, his refusal to
container or containers (emphasis supplied).
Es Only the Central Government or any officer empowered by the
Central Government shall have power to take samples.
i Samples can be taken for the purpose of analysis of air, water, soil
or of other substance.
Result of such analysis shall be admissible in legal proceedings only
when sub-sections (3) and (4) are complied with.
The procedure to take samples has been prescribed under
sub-sections (3) and (4) of Section 11.
The procedure in sub-section (3) prescribes firstly, the notice of
the intention to take sample be served to the occupier, or his agent
or person in charge of the place; secondly, the sample be collected
in the presence of the occupier/agent/person in charge of the place;
thirdly, the sample so taken be marked, sealed and signed by the
person taking the sample and occupier/agent/person in charge of
the place; and fourthly, such sample so taken be sent to the labora-
tory established or recognised by the Central Government, without
delay.
wn
Sub-section (4) prescribes the procedure where a person wilfully
absents himself though a notice has been served to him, or when
he refuses to sign the marked and sealed container. In such cases,
sample will be taken by the authorised person and he will sign the
marked and sealed container of the sample and shall inform the
government analyst in writing of such refusal or non-cooperation.
The non-cooperation/wilful absence or refusal to sign amounts
to non-compliance with the provisions of the Act, which is punish-
able under Section 15 of the Act.
. Procedure to take sample has been provided under Rule 16 of the
Environment (Protection) Rules, 1986. And the procedure of ser-
vice of notice, procedure for submission of samples for analysis and
form of laboratory have been provided under Rules 7 and 8 of the
Environment (Protection) Rules, 1986.
6. Procedure for taking samples. —The Central Government or the officer
empowered to take samples under Section 11 shall collect the sample in suf-
ficient quantity and divide it into two uniform parts and effectively seal and
suitably mark the same and permit the person from whom the sample is
taken to add his own seal or mark to all or any of the portions so sealed and
marked. In case where the sample is made up in containers or small volumes
and is likely to deteriorate or be otherwise damaged if exposed, the Central
Government or the officer empowered shall take two of the said samples
without opening the containers and suitably seal and mark the same. The
Central Government or the officer empowered shall dispose of the samples
so collected as follows:—
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 185

() one portion shall be handed over to the person from whom the sample
is taken under acknowledgement; and
(ii) the other portion shall be sent forthwith to the environmental labora-
tory for analysis.

3.20 Environmental laboratories and analysts

Section 12 provides for establishing environmental laboratories by the
Central Government, and appointment and recognition of government
analysts has been mentioned under Section 13 of the Act.
12. Environmental laboratories.—(1) The Central Government may, by
notification in the Official Gazette,—
(a) establish one or more environmental laboratories;
(b) recognise one or more laboratories or institutes as environmental lab-
oratories to carry out the functions entrusted to an environmental
laboratory under this Act.
(2) The Central Government may, by notification in the Official Gazette,
make rules specifying—
(a) the functions of the environmental laboratory;
(b) the procedure for the submission to the said laboratory of samples of
air, water, soil or other substance for analysis or tests, the form of the
laboratory report thereon and the fees payable for such report;
(c) such other matters as may be necessary or expedient to enable that
laboratory to carry out its functions.
Section 12 empowers the Central Government either 1) to establish one
or more environmental laboratories; or 2) recognise one or more labo-
ratories/institutes which will carry out the functions of environmental
laboratories.
Functions of such laboratories have been provided under Rule 9 of the
Environment (Protection) Rules, 1986 which is are follows:
9. Functions of environmental laboratories.—The following shall be the
functions of environmental laboratories:—
(i) to evolve standardised methods for sampling and analysis of various
types of environmental pollutants;
(ii) to analyse samples sent by the Central Government or the officers
empowered under sub-section (1) of Section 11;
(iii) to carry out such investigations as may be directed by the Central
Government to lay down standards for the quality of environment
and discharge of environmental pollutants, to monitor and to enforce
the standards laid down;
(iv) to send periodical reports regarding its activities to the Central
Government;
(v) to carry out such other functions as may be entrusted to it by the
Central Government from time to time.
Such laboratories shall be manned by government analysts as provided
below:
186 ENVIRONMENTAL LAW [CHAP.

13. Government Analysts. —The Central Government may, by notifica-

tion in the Official Gazette, appoint or recognise such persons as it thinks
fit and having the prescribed qualifications to be Government Analysts for
the purpose of analysis of samples of air, water, soil or other substance sent
for analysis to any environmental laboratory established or recognised under
sub-section (1) of Section 12.
Rule 10 of the Environment (Protection) Rules, 1986 also provides for
the qualification of such Analyst which is as follows:
10. Qualifications of Government Analyst.—A person shall not be quali-
fied for appointment or recognised as a Government Analyst unless he is a—
(a) graduate in science from a recognised university with five years’ expe-
rience in a laboratory engaged in environmental investigations, testing
or analysis; or
(b) post-graduate in science or a graduate in engineering or a graduate
in medicine or equivalent with two years’ experience in a laboratory
engaged in environmental investigations, testing or analysis; or
(c) post-graduate in environmental science from a recognised university
with two years’ experience in a laboratory engaged in environmental
investigations, testing or analysis.
Section 14 declares that a report signed by a government analyst, as men-
tioned above, “may be used as evidence of the facts stated therein in any
proceeding under this Act”. It shows the evidentiary value of the report
given by the analyst authorised or authorised by the State Government.

3.21 Abatement of environmental pollution

3.21.1 Liability and punishment for the erring
person/environmental polluter
Section 15 provides penalty for the contravention of the provisions of this
Act and rules.
Sections 16 and 17 provide for the liability and punishment for the
offences committed by companies and government departments.
15. Penalty for contravention of the provisions of the Act and the rules,
orders and directions.—(1) Whoever fails to comply with or contravenes
any of the provisions of this Act, or the rules made or orders or directions
issued thereunder, shall, in respect of each such failure or contravention, be
punishable with imprisonment for a term which may extend to five years or
with fine which may extend to one lakh rupees, or with both, and in case the
failure or contravention continues, with additional fine which may extend to
five thousand rupees for every day during which such failure or contravention
continues after the conviction for the first such failure or contravention.
(2) If the failure or contravention referred to in sub-section (x) conti
nues
beyond a period of one year after the date of conviction, the offender
shall be
punishable with imprisonment for a term which may extend to seven
years.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 187

Section 15, Environment (Protection) Act, 1986 is the only section of the
Act which provides punishment/penalty for the violation/non-compliance
with the provisions of the Act.°!
Section 15 provides punishment under the following circumstances:
1. When there is a non-compliance or violation of the provisions of
this Act.
2. When a person fails to comply with the rules or contravenes the
rules of the Environment (Protection) Rules, 1986.
3. When a person fails to comply with the directions/orders issued
under the Environment (Protection) Rules, 1986.
4. When a person fails to comply with or contravenes the directions/
orders issued under the Environment (Protection) Rules, 1986.
The quantum of punishment provided for the above conduct is as follows:
Imprisonment which may extend to five years.
Fine which extend to ¥1,00,000.
With both, as mentioned in 1 and 2.
DP
mw
H If the failure or contravention continues beyond a period of one
year after the date of first conviction, punishment will be a) impris-
onment which may extend to seven years; b) additional fine which
may extend to #5000 for every day during which such failure or
contravention continues from the first failure or contravention.
The nature and the procedure to impose punishment, etc., was discussed
by the Supreme Court in the Kamal Nath case’. The court observed:
[A] fine is to be imposed upon the person who is found guilty of having
contravened any of the provisions of the Act. He has to be tried for the spe-
cific offence and then on being found guilty, he may be punished either by
sentencing him to undergo imprisonment for the period contemplated by the
Act or with fine or with both. But recourse cannot be taken to Article 142 to
inflict upon him this punishment.
It was also declared by the court that “exemplary damages” are different
from the “fine” envisaged under the Act. The considerations for which
“fine” can be imposed upon a person guilty of committing an offence
are different from those on the basis of which exemplary damages can
be awarded.
Pollution fine cannot be imposed unless there has been a trial and a
finding of the guilt of a person/or an established offence under the Act.
Inherent powers of the Supreme Court provided under Article 142
cannot be invoked and “pollution fine” cannot be imposed under this
article. The court cannot ignore the substantive provisions of a statute

51. S. 41, Water (Prevention and Control of Pollution) Act, 1974 and Ss. 37, 38, 39, Air
(Prevention and Control of Pollution) Act, 1981 also provide for penalties.
52. (2000) 6 SCC 213: AIR 2000 SC 1997.
 |CHAP.
188 ENVIRONMENTAL LAW

rs of
and pass orders under Article 142 in the exercise of inherent powe
where
the court. “This Article cannot be pressed into aid in a situation
fic
action under that Article would amount to contravention of the speci
ot
provisions of the Act itself.” Power of the court under Article 142 cann
be used to supplant substantive law applicable to the case as was found
in this case. Article 142 cannot be used to build a new edifice where
none existed earlier, by ignoring express statutory provisions dealing
with a subject and thereby achieve something indirectly which cannot be
achieved directly.
But “exemplary damages” can be awarded, as pollution is a civil
wrong. By its very nature, it is a tort committed against the community
as a whole. Therefore, a person who is found guilty of causing pollution
has to compensate for the 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.°?

3.22 Power of the courts under writ petition

The powers of the court under Article 32 are not restricted and it can
award damages in PIL or a writ petition as has been held in a series of
cases.°4 “Polluter pays principle”, which has become a part of our envi-
ronmental law, has been enunciated and applied in the case which came
before the court in the form of writ petition under Articles 32 and 226.
In M.C. Mehta v. Union of India, the Supreme Court awarded
¥ 2,00,000 for the death of a labourer who died due to exposure to cold.
In this case Birla Textile Limited decided to shift to Himachal Pradesh
and directed the workers to join at the new location on 15 January 1999,
but the company did not make adequate arrangements for accommoda-
tion and put up tents.
Moreover, payment of compensation/damages does not absolve a
person from his criminal liability under the provisions of this Act.°°
For the purpose of this section, “company” means 1) any body corpo-
rate, 2) and includes a firm, or 3) other association of individuals. And
“director”, in relation to a firm, means a partner of a firm.

$3. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, 2003. Reiterated by the court in
M.C. Mehta v. Kamal Nath, (2002) 3 SCC 653: AIR 2002 SC 1515.
$4. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212: AIR
1996 SC 1446; Vellore Citizens’ Welfare Forum v. Union ofIndia, (1996) 5 SCC 647;
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42: 1995
SCC (L&S) 604: AIR 1995 SC 922; M.C. Mehta v. Union ofIndia, (1987) 4 SCC 463
(Tanneries, Ganga Pollution case); S. Jagannath v. Union of India, (1997) 2 SCC 87;
A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718: AIR 1999
SC 812.
55. (2000) 8 SCC 535.
56. See, Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 189

Section 16 of the Act provides for vicarious liability of the 1) person in

charge, 2) director, 3) manager, 4) secretary, and 5) other officer for an
offence if committed by the company.
The Supreme Court in U.P. Pollution Control Board v. Mohan Meakins
Ltd.°’ made it clear that directors/managers who were responsible for the
construction work and plant would be held liable under Section 16 of the
Environment (Protection) Act, 1986. They cannot be absolved only on
the basis that the complaint was filed 17 years back and there was inor-
dinate delay in taking up a case. The court observed:
Lapse of seventeen years is no doubt considerable, but the Board is not the
least to be blamed ... . Nonetheless, lapse of such long period cannot be a
reason to absolve the respondents from the trial. It must reach its logical cul-
mination. Courts cannot afford to lightly deal with cases involving pollution
of air and water ... . So the courts should not deal with the prosecution for
offences under the Act in a casual or routine manner. Parliamentary concern
in the matter is adequately reflected in strengthening the measures prescribed
by the statute.*®
The case before the court was filed in 1983 and decision by the Supreme
Court was pronounced on 27 March 2000. It is to be noted that the High
Court took 15 years to decide the revision petition which came up before
the Supreme Court as special leave petition.
It is also not necessary that one should go to a court of law to seek
direction of the High Court before taking an action against industries
dumping hazardous wastes, causing land pollution and contamination of
underground water. It is entirely for the Board (Pollution Control Board)
and its officers to find out who are the culprits and take determined and
speedy action under the law.°?
The Supreme Court imposed “pollution fine” of $10,000 each on all
the tanneries in the district of North Arcot, etc. for causing river pol-
lution and land pollution®® which was to be utilised for compensating
the affected persons as identified by the authority and for restoring the
damaged environment.
In Sterlite Industries (India) Ltd. v. Union of India‘, the court
awarded a sum of 100 crores by way of compensation for the damage
caused by the industry to the environment of the area. In this case, a cop-
per smelter plant continued to work for more than ten years (1997-2012)
without environmental! clearance from the authorities concerned in an
ecologically sensitive area and caused lot of damage to the environment.

57. (2000) 3 SCC 745: AIR 2000 SC 1456.

58. U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745: AIR 2000
SC 1456, 1460.
59. Suo Motu v. Vatva Industries Assn., AIR 2000 Guy 33.
60. Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715.
61. (2013) 4 SCC 575.
 190 ENVIRONMENTAL LAW [CHAP.

It caused air pollution, discharged untreated effluent in the open sea and
caused land pollution. The court observed that “considering the mag-
nitude, capacity and prosperity of the appellant company, we are of the
view that the appellant company should be held liable for a compensa-
tion of = 100 crores for having polluted the environment in the vicinity of
its plant and for having operated the plant without a renewal of the con-
sent by the [concerned Board for a fairly long time]”. It was also observed
that “any less amount would not have the desired deterrent effect on
the appellant company”. The court, in this case, applied the principle of
“absolute liability” to compensate and basis to decide the quantum of
compensation propagated in M.C. Mehta v. Union of India.
Sections 16 and 17 of the Act enunciated the principle of vicarious
liability.
16. Offences by companies.—(1) Where any offence under this Act has
been committed by a company, every person who, at the time the offence was
committed, was directly in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the company, shall
be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such
person liable to any punishment provided in this Act, if he proves that the
offence was committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an
offence under this Act has been committed by a company and it is proved
that the offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary
or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
Explanation.—For the purposes of this section—
(a) “company” means any body corporate, and includes a firm or other
association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
Section 16(1) makes the following persons responsible if the offence is
committed by a company:
1. Company.
2. The person who was in charge of and responsible for the conduct
of the business of a company.
But the person will not be held responsible if he can prove that
1. the offence in question was*committed without his knowledge; or
2. he exercised due diligence to prevent the commission of the offen
ce.

62. (1987) t SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
6| THE ENVIRONMENT (PROTECTION) ACT, 1986 191

3. director, manager, secretary or other officer can also be deemed

guilty if it is proved that the offence was committed with his con-
sent or connivance, or was attributable to any neglect on his part.
The term “deemed guilty” indicates vicarious liability of the persons.
17. Offences by Government Departments.—(1) Where an offence under
this Act has been committed by any Department of Government, the Head of
the Department shall be deemed to be guilty of the offence and shall be liable
to be proceeded against and punished accordingly:
Provided that nothing contained in this section shall render such Head of
the Department liable to any punishment if he proves that the offence was
committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an
offence under this Act has been committed by a Department of Government
and it is proved that the offence has been committed with the consent or
connivance of, or is attributable to any neglect on the part of, any officer,
other than the Head of the Department, such officer shall also be deemed
to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
This section also enunciates the principle of vicarious liability of the head
of government departments for the offence committed by any person of
the department. Such head of department will “be deemed to be guilty”.
But the head of the government department can plead in his defence
that
1. the offence was committed without his knowledge; or
2. he exercised all due diligence to prevent the commission of such
offence.
Clause (b) also attributes liability for the offence on an officer other than
the head of the department if it is proved that the offence was committed
with his consent or connivance or attributable to any neglect on his part.

3.23 Protection of the government and its employees, etc.

Section 18 is a corollary to Section 17. It offers protection to the govern-
ment/any officer/other employee/any authority of the government (also
the authority constituted under this Act) in respect of anything done in
good faith or intended to be done in good faith in pursuance of this Act
or rules made or orders/directions issued thereunder. Here, good faith
implies an obligation to act with a degree of prudence.

CHAPTER IV
Miscellaneous provisions
19. Cognizance of offences.—No court shall take cognizance of any
offence under this Act except on a complaint made by—
 192 ENVIRONMENTAL LAW [CHAP.

(a) the Central Government or any authority or officer authorised in this

behalf by that Government; or |
(b) any person who has given notice of not less than sixty days, in the
manner prescribed, of the alleged offence and of his intention to make
a complaint, to the Central Government or the authority or officer
authorised as aforesaid.
The section authorises only the government/authority/officer so author-
ised to file the complaint under the Act.
Section 19 is to be read with Section 15 of the Act.
No private person can file a complaint under the Act unless he gives
a notice of 60 days for the alleged offence to the Central Government/
authority/officer so authorised. Such notice must be given in the pre-
scribed manner.
If the complaint is filed by a person other than the person mentioned
above, the court will refuse to take cognizance of the complaint.
Notice by a person can be given in accordance with Rule 11 of the
Environment (Protection) Rules, 1986 which is as follows:
11. Manner of giving notice.—The manner of giving notice under
clause (b) of Section rg shall be as follows, namely:—
(1) The notice shall be in writing in Form IV.
(2) The person giving notice may send notice to,—
(a) if the alleged offence has taken place in a Union territory—
(A) the Central Board; and
(B) Ministry of Environment and Forests (represented by the
Secretary to the Government of India);
(b) if the alleged offence has taken place in a State;
(A) the State Board; and
(B) the Government of the State (represented by the Secretary to
the State Government in charge of environment); and
(C) the Ministry of Environment and Forests (represented by the
Secretary to the Government of India);
(3) The notice shall be sent by registered post acknowledgement due; and
(4) The period of sixty days mentioned in clause (b) of Section 19 of the
Environment (Protection) Act, 1986 shall be reckoned from the date it
is first received by one of the authorities mentioned above.

3.24 Power of the Central Government to require to furnish

information, report or returns
Section 20 of the Act empowers the Central Government to require
any person, State Government or other authority to furnish any
report,
returns, statistics, accounts, and other information to it. Such
a person/
officer/State Government/other authority shall be bound to
supply it. It
is a mandatory provision and violation of which may attract
Section 15
providing penalty for such violation.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 193

All the members of the authority constituted under Section 3 or any

employee under him, when acting or purporting to act in pursuance of
any provision of the Act/rules, shall be deemed to be public servants
within the meaning of Section 21 IPC. Thus, it gives protection and cer-
tain rights which are available to the other public servants.
22. Bar of jurisdiction.—No civil court shall have jurisdiction to enter-
tain any suit or proceeding in respect of anything done, action taken or order
or direction issued by the Central Government or any other authority or
officer in pursuance of any power conferred by or in relation to its or his
functions under this Act.
It means only a criminal court can take cognizance of the violation/
non-compliance/contravention of the provisions of this Act or the rules
made thereunder. Such a criminal court to entertain the case/complaint
under the Act is the Chief Judicial Magistrate.
23. Power to delegate. — Without prejudice to the provisions of sub-section
(3) of Section 3, the Central Government may, by notification in the Official
Gazette, delegate, subject to such conditions and limitations as may be spec-
ified in the notification, such of its powers and functions under this Act
[except the power to constitute an authority under sub-section (3) and to
make rules under Section 25] as it may deem necessary or expedient to any
officer, State Government or other authority.
It must be made clear that delegation of powers is not absolute and does
not completely denude the Central Government of its powers.°°

3.25 Effects of other laws

24. Effect of other laws.—(1) Subject to the provisions of sub-section (2),
the provisions of this Act and the rules or orders made therein shall have
effect notwithstanding anything inconsistent therewith contained in any
enactment other than this Act.
(2) Where any act or omission constitutes an offence punishable under
this Act and also under any other Act then the offender found guilty of such
offence shall be liable to be punished under the other Act and not under this
Act.
Clause (1) of Section 24 makes its clear that the provisions of this Act
and rules thereunder have overriding effect on any already existing
enactment.
Clause (2) of the section clarifies that if an act or omission consti-
tutes an offence punishable under this Act and this act is also punishable
under any other Act, he shall be punished under the other law and not
under the Environment (Protection) Act.

63. Ram Sevak Singh v. State of Bihar, 1979 BLJR 496.

194. ENVIRONMENTAL LAW [CHAP.

Section 60, Water (Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act, 1981 under Section 52
have similar provisions. |
Section 60, Water (Prevention and Control of Pollution) Act, 1974
says:
the provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act.
Section 52, Air (Prevention and Control of Pollution) Act, 1981 states:
...the provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act.°*
25. Power to make rules.—(1) The Central Government may, by notifi-
cation in the Official Gazette, make rules for carrying out the purposes of
this Act.
(2) In particular, and without prejudice to the generality of the forego-
ing power, such rules may provide for all or any of the following matters,
namely:—
(a) the standards in excess of which environmental pollutants shall not be
discharged or emitted under Section 7;
(b) the procedure in accordance with and the safeguards in compliance
with which hazardous substances shall be handled or cause to be han-
dled under Section 8;
(c) the authorities or agencies to which intimation of the fact of occur-
rence or apprehension of occurrence of the discharge of any envi-
ronmental pollutant in excess of the prescribed standards shall be
given and to whom all assistance shall be bound to be rendered under
sub-section (1) of Section 9;
(d) the manner in which samples of air, water, soil or other substance
for the purpose of analysis shall be taken under sub-section (1) of
Section 11;
(e) the form in which notice of intention to have a sample analysed shall
be served under clause (a) of sub-section (3) of Section 11;
(f) the functions of the environmental laboratories, the procedure for the
submission to such laboratories of samples of air, water, soil and other
substances for analysis or test; the form of laboratory report; the fees
payable for such report and other matters to enable such laboratories
to carry out their functions under sub-section (2) of Section 12;
(g) the qualifications of Government Analyst appointed or recognised for
the purpose of analysis of samples of air, water, soil or other sub-
stances under Section 13;
(4) the manner in which notice of the offence and of the intention to make
a complaint to the Central Government shall be given under clause (b)
of Section r9;
(7) the authority or officer to whom any reports, returns, statistics,
_ accounts and other information shall be furnished under Sectio
n 20;
(7) any other matter which is required to be, or may be, prescribed
.
64. V.S. Damodaran Nair v. State of Kerala, AIR 1996 Ker 8.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 195

This section empowers the Central Government to make rules for

carrying out the purpose of-this Act. Such rules must be notified in the
Official Gazette.
Clause (2) of the section empowers the Central Government to make
rules particularly on ro items as provided from (a) to (j) above.
The Supreme Court has made it clear that the rules to be enacted
under this Act have the same effect as the provisions of the Act have.
The Supreme Court in B.L. Wadehra v. Union of India® issued 14
directions to the Delhi Municipal Corporation and others regarding the
degrading ambient air quality and disposal of solid waste of Delhi city.
Later on, by order dated 16 January 1998, the court constituted a com-
mittee to look into various aspects of urban solid waste management.
The committee gave its recommendations which were circulated to all
the States. In response to the report of the committee and keeping that
report in mind, the Municipal Solid Waste (Management and Handling)
Rules, 1999 were notified by the Central Committee suggesting how to
deal with solid waste in cities.®°
The Delhi High Court made it clear in Jackson & Co. v. Union of
India®’ that the State Government can also make rule under Section 25 of
the Act and Rule 2(c), calling upon the manufacturers to provide a device
for preventing noise pollution, i.e. acoustic enclosure. Section 3 of the
Act, specifically authorises States to make rules to prevent and control
the pollution. In this case, the petitioners challenged the rules made by
the Delhi State to provide acoustic enclosure with diesel generator sets.
The rules were held within the power of the State.
26. Rules made under this Act to be laid before Parliament.—Every rule
made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session, or in two or more successive
sessions, and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in making
any modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be
of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously
done under that rule.
Sections 3, 6, 8 and 25 of the Act empower the Central Government
to make rules on various matters; for example, relating to standards in
respect of noise, air quality, water quality or permissible limits of emis-
sion/discharge of various pollutants from various industries, or regarding
handling, management and disposal of hazardous substances, chemicals,
biomedical waste, municipal solid waste, plastic, noise, etc.
65. (1996) 2 SCC 594: AIR 1996 SC 2969.
66. Almitra H. Patel v. Union of India, (2000) 2 SCC 679: AIR 2000 SC 1256.
67. AIR 2005 Del 334.
 ENVIRONMENTAL LAW [CHAP.
196

Section 26 prescribes that every rule made under this Act shall be laid
before each House of Parliament. Rules can be accepted, modified or
rejected by both the Houses of Parliament.
Such rules acquire validity from the date on which they are made.
Usually, the rules so made provide that such rules would come into force
on the date of their publication in the Official Gazette.
Section 63(3), Water (Prevention and Control of Pollution) Act, 1974
and Section 53(z), Air (Prevention and Control of Pollution) Act have
similar provisions.

3.26 Some suggestions

Though, the Environment (Protection) Act, 1986 is an umbrella legis-
lation, but it still needs revamping and thoughtful review in the light
of newer problems, diseases, indirect adverse result of pollutants, expo-
nential growth of population, escalating poverty and urbanisation. The
Act and its various rules notified till December 2000 have not been able
to properly grasp and control the problem. As the Bio-Medical Waste
(Management and Handling) Rules were pronounced in 1998, the
Municipal Waste (Management and Handling) Rules, in 1999 and the
Noise Pollution (Control and Regulation) Rules in February 2000, there
are still newer areas of pollution and environmental degradation which
are yet to be covered and managed. In the light of the various judicial
pronouncements and newer technological and scientific advancements,
the following are some of the suggestions to improve the present-day law:
1. Instead of piecemeal legislation on various components of environ-
ment—air, water, forests, etc. —there must be one comprehensive,
well-defined code covering all the aspects of the problems known
as National Environment (Protection) Act.
This Code may have separate chapters on all the aspects of envi-
ronmental degradation, pollution and eco-imbalances—as sepa-
rate chapters on air, water, land, hazardous wastes—municipal
waste and industrial waste, noise, population control, zoning laws,
biodiversity, climatic changes, and flora and fauna (wildlife, ani-
mals, forests).
All the rules made/notified under the Environment (Protection)
Act, 1986 under Sections 3, 6, 8 and 25 must be incorporated into
the abovementioned chapters to make it a complete and compre-
hensive legislation. For example, the chapter on “noise pollution”
will assimilate the Noise Pollution (Control and Regulation), Rules,
2000 and other provisions of the Air (Prevention and Control of
Pollution) Act, 1981 and provisions of Schedule VI; Part E of the
Environment (Protection) Act, 1986 which also mentions “noise
standards” for automobiles and the related provisions of the Motor
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 197

Vehicles Act, 1988 and its rules of 1989. The State laws dealing
with noise pollution must also be studied and assimilated in the
chapter.
On the guidelines provided above, the Code should have chap-
ters on land, air, water and radiation pollution.
2. Till today, nothing substantial has been done to deal with the
problem of “climate change” and protection of “biodiversity” as
India is one of the signatories of the “Earth Summit” — 1992 Rio
Conference Conventions. A draft Bill was prepared and presented
to Parliament on biodiversity but it has not been passed and has
not seen the light of day. Therefore, it is urgently needed that we
must take firm steps in this direction by legislating on these two
problems at the earliest.
3. Some of the aspects of damage to environment have not been cov-
ered by the Environment (Protection) Act, 1986 (EPA); for exam-
ple, soil degradation, erosion, desertification and effects of drought
and flood. Therefore, some provisions must be made in the EPA to
cover these significant aspects of degrading environment.
The definitional clause must also provide an inclusive clause to
include abovementioned aspects in Section 2(a), (b) and (c).
4. The “authority” or “authorities” as envisaged by the EPA under
Section 3(3) should be appointed to look after the various aspects
of the environment and to implement the provisions of the environ-
mental laws and carry out the orders of the court issued from time
to time.
5. The Supreme Court has reiterated time and again that “environ-
ment courts” must be established immediately. These courts will
have exclusive jurisdiction in environmental matters and will be
manned by administrators, scientists, technocrats having special-
ised knowledge in the field of environmental science/management.
The State of Rajasthan, on its own, was the first State to constitute
an Environment Court in Pali district in 1994.
6. Similarly, Green Benches must be set up in all the High Courts of
the States as has been done in the States of Tamil Nadu, Madhya
Pradesh, Karnataka and West Bengal.
7. A provision must be incorporated that the environmental issues/
matters must be decided by the court “as early as possible” —look-
ing at the circumstances and magnitude of the happenings in a
case. The Supreme Court has suggested that such cases must’be
decided in three months from their date of filing (Ganga Pollution
case®, Oleum Gas Leakage case°’).
68. (1988) 1 SCC 471: 1988 SCC (Cri) 141.
69. M.C. Mehta v. Union of India, (1986) 2 SCC 176: 1986 SCC (Cri) 122: AIR 1987
SC 965.
 ENVIRONMENTAL LAW [CHAP.

A provision of various Acts, rules, regulations should effectively be

implemented. The authorities concerned should implement them in
their true spirit. Non-implementation, neglect in performing stat-
utory duties, non-implementation of the orders of the courts must
be treated as a serious dereliction of the statutory duties and the
person concerned should be punished strictly. In B.L. Wadehra v.
Union ofIndia”, the Supreme Court issued orders in 1996 but they
had not been implemented by the municipal corporation and other
authorities till 1999, the court had issued some more directions in
Almitra H. Patel v. Union of India’! and asked the government to
appoint officers to implement the orders regarding solid waste dis-
posal, littering and cleaning of metropolitan cities.
Section 19(b) requiring a person, who intends to file a case under
the Act, to give a 6o days notice is an impractical clause and in a
way denies the right of a common man to bring the case under the
EPA before the court of law. It also gives latitude to continue the
nuisance/pollution at least for 60 days and the sufferers or persons
concerned have no alternative except to wait helplessly. It also indi-
cates that the cases under the EPA can be filed only by the Central
Government and its officers and by none else. Thus, it denies the
right to public participation and non-acceptance of the principle of
participative justice.
LO; Section 15 of the EPA provides punishment for all types of contra-
ventions and violations under the Act. Punishments for different
offences must, firstly, commensurate with the degree of the offence;
secondly, some “minimum punishment” be provided for such
offences of affecting the public at large; thirdly, “personal liability”
of the erring industrialist, owner, officer must be fixed by the EPA
including the liability to reverse the ecology of the affected area as
has been declared in Indian Council for Enviro-Legal Action v.
Union of India’*—H-Acid industry case of 1996.
iOs Concept of “absolute liability” with “non-delegable duty” must be
incorporated in the punishment provisions.
FZ! The rules of the EPA must provide that industries dealing with
hazardous substances or inherently dangerous substances must
compulsorily be shifted/located to safer places. At least they must
not be near densely populated areas, forests, beaches, hill stations,
green zones and environmentally sensitive areas.

70. (1996) 2 SCC 594: AIR 1996 SC 2969.

71. (2000) 2 SCC 679: AIR 2000 SC 1256, case was decided on
dt. I§-2-2000.
72.(1996) 3 SCC 212: AIR 1996 SC 1446.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 199

4. NATIONAL GREEN TRIBUNAL ACT, 20107

The Supreme Court in M.C: Mehta v. Union of India” observed that
“environment courts” must be established for expeditious disposal of
environmental cases and reiterated it time and again. As a sequel to it the
National Environment Tribunal Act, 1995 and the National Environment
Appellate Authority Act, 1997 were passed by the Indian Parliament. But
both the Acts proved non-starter. They could not cut much ice and there
was a growing demand that some legislation must be passed to deal with
the environmental cases more efficiently and efficaciously. Ultimately the
Indian Parliament has passed the National Green Tribunal Act, 2010” to
handle all the cases relating to environmental issues.

4.1 Aims and objects of the National Green Tribunal Act, 2010”
The Act has been passed
for the effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources including
enforcement of any legal right relating to environment and giving relief and
compensation for damages to persons and property and for matters con-
nected therewith or incidental thereto.
The Act was the need of the time “in view of the involvement of mul-
ti-disciplinary issues relating to the environment”. Further it was also
necessary to pass it as India was participatory and signatory to interna-
tional Conventions/declarations like the Stockholm Declaration of 1972,
Rio de Janeiro Declaration of 1992, which have called upon the States
to provide effective access to judicial and administrative proceedings,
including redress and remedy and to develop national laws regarding
liability and compensation for the victims of pollution and other envi-
ronmental damage.
The National Green Tribunal (NGT) has been created with an aim
to check industrial pollution, and allow aggrieved persons to approach
the tribunal to claim civil damages for non-implementation of environ-
mental laws. The NGT is likely to lessen the burden of the courts in the
country as it would take over 5600 cases related to environment, as these

73. The Act became operational as the Supreme Court has lifted the ban imposed by the
Madras High Court. See, Sunday Times of India, dt. 24-4-2011, “National Green
Tribunal may start next month”, 7.
74. (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
75. It was passed on dt. 2-6-2010. The President of India gave its assent on dt. 2-6-2010.
It has repealed the National Environment Tribunal Act, 1995 and the National
Environment Appellate Authority Act, 1997.
76. The National Green Tribunal Rules, 2or1 have also been notified on dt. 4-4-2011,
consisting of 37 rules and formats of VI forms.
 |CHAP.
200 ENVIRONMENTAL LAW

me the third
cases would be transferred to NGT. Thus, India has beco
country in the world to have special courts for environmental issues.
g
Recently, the Supreme Court in Bhopal Gas Peedith Mahila Udyo
s
Sangathan v. Union of India’’ has directed that the environmental issue
and matters covered under the National Green Tribunal Act, 2010,
Schedule I should be instituted and litigated before the National Green
Tribunal. Matters instituted after coming into force of this Act, or cov-
ered under the provisions of this Act shall stand transferred and can
be instituted only before National Green Tribunal. It was also observed
that “this will help in rendering expeditious and specialised justice in
the field of environment to all concerned.” Though this case was trans-
ferred to the M.P. High Court and not to the National Green Tribunal
as it involved administrative supervision for the proper execution of the
orders of the Supreme Court.
The Act consists of 38 sections divided into five chapters and three
schedules.

4.2 Constitution of the tribunal

The Central Government has been authorised to establish the NGT,
which will be headed by a full time Chairperson and other members”. It
also provides that
the Chairperson and other Judicial and Expert Members shall not, for a
period of two years from the date on which they cease to hold office, accept
any employment in, or connected with the management or administration of,
any person who has been a party to a proceeding before the Tribunal under
this Act.”
The Chairperson shall be appointed by the Central Government in con-
sultation with the Chief Justice of India; and other judicial and expert
members shall be appointed on the recommendations of such Selection
Committee and in such manner as may be prescribed.8° Number of such
judicial and expert members shall be not less than ro, but subject to
maximum of 20 full time members as the Central Government may, from
time to time, notify. Further the Chairperson of the tribunal may, if he
considers it necessary, invite any one or more person having specialised

77. (2012) 8 SCC 326: AIR 2012 SC 3081. Case was decided on 9-8-2012.
78.S. 5, Qualifications for appointment of Chairperson, Judicial Member and Expert
Member: A person shall not be qualified for appointment as the Chairperson or
Judicial Member of the tribunal unless he is, or has been, a judge of the Supreme
Court of India or Chief Justice of a High Court, provided that a person who is or has
been a judge of the High Court shall also be qualified to be appointed as a Judicial
Member.
12.3)
80.S. 6.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 201

knowledge and experience in a particular case before the tribunal to

assist the tribunal in that case.
The Chairperson, judicial member and expert member of the tri-
bunal shall hold office as such for a term of five years from the date
on which they enter upon their office, but they shall not be eligible for
re-appointment.®!

4.3 Qualifications®
The Chairperson or judicial member of the tribunal must have been a
judge of the Supreme Court of India*®’ or Chief Justice of a High Court.
Judge of the High Court shall also be qualified to be appointed as a judi-
cial member.
Expert members shall have the following qualifications:
1. who possesses a degree in Master of Science (in physical sciences
or life sciences) with a Doctorate degree or Master of Engineering
or Master of Technology and has an experience of 15 years in the
relevant field including five years practical experience in the field
of environment and forests (including pollution control, hazardous
substance management, EIA, climate change management, biolog-
ical diversity management and forest conservation) in a reputed
national level institution; or
2. the person must have an administrative experience of 15 years
including experience of five years in dealing with environmen-
tal matters in the Central or a State Government or in a reputed
national or State level institution.

4.4 Jurisdiction, powers and proceedings of the tribunal

Section 14 of the Act provides that the tribunal shall have jurisdiction on
all the civil matters where a substantial question relating to environment
(including enforcement of any legal right relating to environment) arises
out of following Acts:
81. S. 7. But if the Chairperson, who is or has been a judge of the Supreme Court, shall
not continue beyond 70 years; in case a person, who is or has been the Chief Justice
of a High Court, has been appointed as Chairperson or Judicial Member of the tribu-
nal, he shall not hold office after he has attained the age of 67 years; in case a person,
who is or has been a judge of a High Court, has been appointed as Judicial Member
of the tribunal, he shall not hold office after he has attained the age of 67 years; that
no Expert Member shall hold office after he has attained the age of 65 years.
82. See, S. 5. Also see, National Green Tribunal (Manner of Appointment ofJudicial] and
Expert Members, Salaries, Allowances and other Terms and Conditions of Service
of Chairperson and other Members and Procedure for Enquiry) Rules, 2010, w.e.f.
26-11-2010.
83. Mr Lokeshwar Singh J, Panta, former judge of the Supreme Court has been appointed
as first Chairperson of the NGT on dt. 18-10-2010.
 LAW [CHAP.
™ O i ENVIRONMENTAL

Water (Prevention and Control of Pollution) Act, 1974

Water (Prevention and Control of Pollution) Cess Act, 1977
Forest (Conservation) Act, 1980
Air (Prevention and Control of Pollution) Act, 1981
Environment (Protection) Act, 1986
AnbYpp Insurance Act, 1991
Public Liability
7. Biological Diversity Act, 2002
It further declares that “no application for adjudication of dispute under
this section shall be entertained by the tribunal unless it is made within a
period of six months from the date on which the cause of action for such
dispute first arose”. On providing “sufficient cause”, the tribunal may
extend this time-limit for a further period but not exceeding 60 days.
The tribunal shall not be bound by the procedure laid down by the
CPC but shall be guided by the principles of natural justice.**

4.5 Relief compensation and restitution

The tribunal has been given wide powers to award relief, compensation
and award while deciding the case.** The tribunal by order may provide
1. relief and compensation to the victims of pollution and other envi-
ronmental damage arising under the enactments specified in the
Schedule I (including accident occurring while handling any haz-
ardous substance);
2. for restitution of property damaged;
3. for restitution of the environment for such area or areas, as the
tribunal may think fit.
It is to be noted that such relief, compensation and restitution shall be in
addition to any relief paid or payable under the Public Liability Insurance
Act, 1991.
The application for such relief should be filed within a period of five
years from the date on which the cause for such compensation or relief
first arose. Schedule II has provided 14 heads under which relief compen-
sation and restitution shall be awarded by the tribunal which includes
damage to public health, property and environment.
In the light of judicial pronouncements, these heads may include
t) claims on account of any harm, damage or destruction to the fauna
including milch and draught animals and aquatic fauna; 2) claims on
account of any harm, damage or destruction to flora including aquatic
flora, crops, vegetables, trees and orchards; 3) claims including cost of
restoration on account of any harm or damage to environment including
pollution of soil, air, water, land and ecosystems.

84. S. 19 of the Act has provided the procedure to be followed by the tribun
al.
85.S. 15 of the Act.
6] THE ENVIRONMENT (PROTECTION) ACT, 1986 203

The tribunal shall, while passing any order or decision or award, apply
the principles of sustainable development, the precautionary principle
and the polluter pays principle.*°
Where any amount by way of compensation or relief is ordered to be
paid under any award or order made by the tribunal on the ground of
any damage to environment, such amount of the award shall be remitted
to the authority specified under sub-section (3) of Section 7-A, Public
Liability Insurance Act, 1991 to be credited to the ERF established under
that Act*’.
The Act has debarred the jurisdiction of other civil courts in environ-
mental cases and has provided that no civil court shall have jurisdiction
to settle dispute or entertain any question relating to any claim for grant-
ing any relief or compensation or restitution of property damaged or
environment damaged which may be adjudicated upon by the tribunal.**
The Act has overriding effect and pre-empts the jurisdiction in spite of
present laws in force relating to environmental issues.

4.6 Appeal
The Act has also provided that if a person is aggrieved by the decision of
the tribunal, he can file an appeal to the Supreme Court within a period
of 90 days from the date of communication of the decision/award on any
one or more of the grounds specified in Section 100 CPC.* The Supreme
Court may also entertain any appeal after the expiry of 90 days, if it is
satisfied that the appellant was prevented by sufficient cause from pre-
ferring the appeal. Since, it has the powers of a High Court and it can
penalise and convict the violator, its verdict could be challenged only in
the Supreme Court. Individuals, organisations, civil society and govern-
ments can approach the tribunal for redressal.

4.7 Penalty and punishment

The Act has also provided provisions for not abiding by the decision/
award of the tribunal. It provides that in case of non-compliance of
award/order/decision, one shall be punishable with imprisonment for a
term which may extend to three years, or with fine which may extend
to #10 crores, or with both and in case the failure or contravention con-
tinues, with additional fine which may extend to 25,000 for every day
during which such failure or contravention continues after conviction for
the first such failure or contravention.”°
86. See, S. 20 of the Act.
87. See, S. 24 of the Act.
88. See, S. 29 of the Act.
89. See, S. 22 of the Act.
90. See, S. 26 of the Act.
204 ENVIRONMENTAL LAW

But if the company is found guilty of such offences, then such com-
pany shall be punishable with fine which may extend to % 25 crores,
fine
and in case the failure or contravention continues, with additional
which may extend to 1,00,000 for every day during which such failure
or contravention continues after conviction for the first such failure or
contravention.
Following the principle of vicarious liability, the Act has declared:
every person who, at the time the offence was committed, was in charge of,
and was responsible to the company for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly.”
The person will not be held responsible if he can prove that the offence
was committed without his knowledge or that he had exercised all due
diligence to prevent the commission of such offence. Similarly director,
manager, secretary or other officers of the company, shall also be deemed
to be guilty of that offence if it can be shown that offence has been com-
mitted with the consent or connivance of, or is attributable to any neglect
on their part.
This principle of liability is also applicable to the head of the govern-
ment departments.”
The Act also provides that no court shall take cognizance of any offence
under this Act unless a complaint made by 1) the Central Government or
any authority or officer authorised in this behalf by that government; or
2) any person who has given notice of not less than 60 days in such man-
ner as may be prescribed, of the alleged offence and of his intention to
make a complaint, to the Central Government or the authority or officer
authorised as aforesaid. If we analyse this provision, it seems that only
the Central Government or its designated authority is authorised to file a
case as has been provided under the Environment (Protection) Act, 1986.
It will prove to be a “prohibitory” clause rather than “enabling” clause.
This is not a happy situation.

4.8 Levy of one per cent court fee

According to new rules declared by the Environment Ministry regarding
the working of the NGT, it is mandatory for the victim to pay one per
cent of the amount of compensation claimed by him as a “fee” subject to
minimum z% 1000 to the newly set up NGT. “The unprecedented rule will
make the victim to pay to the government to deliver justice. The culprit
will not.”” It is not a happy development.

91. See, S. 27 of the Act.

92. See, S. 28 of the Act.
93. Sunday Times of India, dt. 24-4-2011, 7.
 CHAPTER 7
Law Relating to Hazardous Wastes
Management: An Indian Profile

India has been undergoing an industrial revolution in a big way during

the last three decades. With the recent liberalisation of our industrial
policy, it has also got a further boost. Time is not far when India will
be counted amongst the highly industrialised countries, even competing
with the most developed Western World. Consumer goods will be avail-
able freely and of best quality. Exports will go up considerably. Foreign
exchange will gush in. Gross net productivity will be elevated. The eco-
nomic condition of the common man will improve. Prosperity will pre-
vail. India will again become the legendary “golden bird”. This is all
proverbially “one side of the coin”.
The other side of the coin is not very bright. As it is a well-known fact
that industries spew solid, liquid and gaseous substances into the envi-
ronment, unless such wastes are effectively managed, our environment
may get damaged irreparably. Already, some of our highly urbanised
and industrialised areas are staggering under the impact of the induction
of pollutants in the environment. Our natural resources like air, water
(both surface and ground) and soil are being subjected to environmental
stress and deserve immediate attention.
Scientific and technological advancements and mismanagement of
natural resources have given rise to numerous environmental problems
such as pollution of water, soil, air radiation and noise, with consequent
adverse effects on flora and fauna, human health and well-being. These
problems are actually caused by rapid, unprecedented and unplanned
development programmes in the guise of industrialisation. Industries,
though contribute to the development and progress of a nation, their
wastes and toxic effluents discharged freely in the air, water and on land
are doing irreversible and irreparable damage to mankind. Similarly,
unbridled exploitation of renewable and non-renewable natural resources
without caring for the waste debris has caused ecological imbalances and
206 ENVIRONMENTAL LAW [CHAP.>

environmental pollution problems. This, in turn, has not only affected

the quality of life but threatened the very existence of mankind. Due to
this we have lost thousands of species of animals, birds and plants and
some more are under constant threat of extinction. |
The Bhopal Holocaust (1984), where more than 3000 persons died
and about two lakh were affected by the leakage of methyl isocyanate
(MIC) gas; Love Canal incident of the US (1978) where residents of an
area were evacuated and the US Government spent more than US $30
million in a clean-up operation; the Seveso incident in North Italy (1976)
where contaminated debris, contained in steel drums, were disposed
of innocuously with barrels of vinegar in a pickle factory and it played
havoc later on; methylmercury poisoning in the Minamata Bay (Japan,
1956-1980) caused by the industrial release of methyl and mercury com-
pounds resulting in several deaths and several types of diseases, includ-
ing prenatal brain damage; nuclear accidents at the Three Mile Island
nuclear power station of the US in 1979 and at Chernobyl in the then
USSR are representative samples of the worst kind of threat to the pres-
ent generation and to posterity. Studies of these incidents reveal various
kinds of short-term and long-term effects on human beings, flora and
fauna. A complete list of the various kinds of ailments and reversible and
non-reversible effects is still to be drawn up. Some ill-effects have been
identified and evaluated and some have not been realised. The evaluation
is not easy. Research on the adverse effects of MIC is still on. Chemical
pesticides, fungicides, rodenticides have also added fuel to the fire. Their
persistence and ubiquitous nature, coupled with their tendency to con-
centrate in organisms as they move up the food chain, increase their
toxicity to fish, birds and wildlife and, in turn, ultimately to man.
Looking to the multitudinous and menacing adverse effects of toxic
wastes, a number of measures have been adopted at regional, national
and international levels from time to time. The Stockholm Declaration
on Human Environment (1972) also raised its voice concerning the rapid
acceleration of science and technology.
The World Commission on Environment and Development, in its
report, entitled “Our Common Future” (1987), has mentioned industrial
wastes and toxic substances as one of the major “common challenges”
the world is facing today.! It has proposed various institutional and legal
changes to be adopted at national and international levels.
Accordingly, many world governments have adopted various meas-
ures to contain the menacing threat of industrial wastes and toxic sub-
stances including administrative, regulatory and legal measures. The US
passed the Solid Waste Disposal Act, 1960; the Resource Conservation
and Recovery Act, 1976; and the Superfund Act, r980 to deal with solid

1. Our Common Future (1987) Chap. 8.

7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 207

waste problems. To control and regulate the menace of toxic substances,

the Federal Government passed the Toxic Substances Control Act, 1977;
the Pesticides Control Act, 1972; the Nuclear Waste Policy Act, 1982;
and the Ocean Dumping Act, 1972 and many other laws.
Similarly, the UK passed a comprehensive code called the Control of
Pollution Act, 1974 which provides various regulatory and control meas-
ures relating to wastes disposal. It also provides various regulatory and
prohibitive measures to control the hazardous effects of pesticides; the
Radioactive Substances Act, 1960, the Nuclear Installations Act, 1965
and the Radiological Protection Act, 1970 provide measures for the safe
disposal of nuclear waste.
India—one of the participants at the Stockholm Conference on
Human Environment—has also taken various steps to regulate and
manage industrial wastes and toxic substances. There are various laws
which directly or indirectly deal with hazardous wastes and toxic sub-
stances. One of those is the Penal Code, 1860 (IPC). The IPC declares
the acts and omissions affecting public health, safety and convenience as
offences under various sections under Chapter 14.” But this old enact-
ment has not been able to make any dent in the problem and is not suffi-
ciently equipped to deal with newer aspects of hazardous wastes.
The Environment (Protection) Act, 1986 comprehensively deals with
environmental problems. Section 6 expressly empowered the Central
Government to make rules on various items including 1) the procedures
and safeguards for the handling of hazardous substances; and 2) the pro-
hibition and restriction on the handling of hazardous substances in dif-
ferent areas.
In the exercise of the powers conferred by Sections 6, 8 and 25,
Environment (Protection) Act, the Central Government passed impor-
tant rules to deal with hazardous waste and toxic chemicals. These are:
1. Hazardous Wastes (Management, Handling and Transboundary
Movement) Rules, 2008
) . Manufacture, Storage and Import of Hazardous Chemicals Rules,
1989
. Hazardous Micro-Organisms Rules, 1989
National Environment Tribunal Act, 1995
National Environment Appellate Authority Act, 1997
Biomedical Waste (Management and Handling) Rules, 1998
Recycled Plastics Manufacture and Uses Rules, 1999
Municipal Solid Waste (Management and Handling) Rules, 2000
LS
away
eN Batteries (Manufacture and Handling) Rules, 2001

2. Ss. 268, 269, 277, 278, 284.

 [CHAP.
208 ENVIRONMENTAL LAW

HANDLING
1. HAZARDOUS WASTES (MANAGEMENT,
2008°
AND TRANSBOUNDARY MOVEMENT) RULES,
known as the
These rules have replaced the old rules previously
s, 1989. The rules
Hazardous Waste (Management and Handling) Rule
on the Control
of 1989 did not cover the International Basel Convention
r Disposal,
of Transboundary Movements of Hazardous Wastes and thei
s have
1989‘. Therefore, to implement the Basel Convention, these rule
seven
been passed. It consists of 26 rules divided into seven chapters and
ce
schedules. Main emphasis of these rules is on reuse, recycle and to redu
the hazardous wastes.
Rule 3(/) have defined the term “hazardous waste” as:
... any waste which by reason of any of its physical, chemical, reactive, toxic,
flammable, explosive or corrosive characteristics causes danger or is likely
to cause danger to health or environment, whether alone or when in contact
with other wastes or substances, and shall include—
(a) waste specified under column (3) of Schedule-I,
(b) wastes having constituents specified in Schedule-II ...
(c) wastes specified in part A or part B of the Schedule-III in respect of
import or export of such wastes ... .
Such definition was not available in the rules of 1989. But such waste
shall not include 1) waste water and exhaust gases; 2) wastes arising out
of the operation from ship beyond five kilometers of the relevant base-
line; 3) radio-active wastes; 4) biomedical waste; and 5) municipal solid
wastes?.
Various kinds of hazardous waste® which have been identified and
taken care of by the rules are as follows:
t. Industrial wastes (hazardous) generated during production such as
rejects/process residues, spent chemicals/solvents, spent catalysts,
hazardous dust collected from air pollution control devices, sludge
arising from waste water treatment plants, etc.

3. These rules of 2008 have replaced the old one previously known as the Hazardous
Waste (Management and Handling) Rules, 1989. These rules of 2008 came into force
on 28-9-2008. These rules have been amended thrice till March 2010.
4. As of September 2010, there are 174 parties to the Basel Convention (173 States par-
ties and the European Union). The Basel Protocol on “Liability and Compensation
for Damage resulting from Transboundary Movements of Hazardous Wastes and
their Disposal” was adopted by COP 5 in 1999.
eRe 2
6. Part C of the Sch. III of the rules has identified “hazardous characteristics”, they
are as follows: explosive, flammable liquids, flammable solids, substances or wastes
liable to spontaneous combustion, substances or wastes which, in contact with water
emit flammable gases, oxidizing, acute poisons, infectious substances, corrosives,
liberation of toxic gases in contact with water and air, toxic (delayed or chronic) and
e€co-toxic.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 209

2. Date expired products such as obsolete pesticides and medicines.

3. Discarded products such as fluorescent bulbs and tubes containing
mercury, used batteries, etc.
4. E-waste.
5. Hazardous waste from demolition including ship breaking
activities.
6. Used oil/waste oil.
7. Used lead acid batteries.
The hazardous constituents are divided into five classes provide in
Schedule II of the Rules (A to E) depending upon the magnitude of the
hazard, and the concentration limits are stipulated for each class. It may
be noted that high volume low effect wastes such as fly ash, phospho-
gypsum, red mud (from alumina refineries), slags from pyrometallur-
gical operations, mine tailings and ore beneficiation rejects have been
excluded from the category of hazardous wastes.

1.1 Control mechanism

Rule 4 expressly provides that the “occupier”’ shall be “responsible for
safe and environmentally sound handling of hazardous wastes generated
in his establishment”. The occupier can send or sell for recycler/reuser/
reprocessor to the authorised disposal facility. He is also bound to take
all the steps to 1) contain contaminants and prevent accidents and limit
their consequences on human beings and the environment; and 2) pro-
vide persons working on the site with the training, equipment and the
information necessary to ensure their safety.

1.2 Authorisation for handling hazardous wastes

Rule 5 states that the person who is “engaged in generation, processing,
treatment, package, storage, transportation, use, collection, destruction,
conversion, offering for sale, transfer or the like of the hazardous waste”
shall obtain an authorisation from the State Pollution Control Board
(SPCB) concerned. Further the site/facilities for collection, treatment,
reprocessing, storing or disposal of hazardous waste must be done at the
site authorised by the SPCB.
Persons engaged in above activities shall apply for authorisation in
prescribed forms. The SPCB is bound to grant/refuse within a period of
120 days such authorisation, after necessary enquiry; that shall be valid

7. R. 3(q):
“occupier” in relation to any factory or premises, means a person who has, con-
trol over the affairs of the factory or the premises and includes in relation to any
hazardous waste the person in possession of the hazardous waste.
 |CHAP.
210 ENVIRONMENTAL LAW

opportu-
for five years®. In case of refusal the applicant shall be given an
nity of being heard.
-
In case the holder of the authorisation fails to comply with the condi
tions, the SPCB can cancel or suspend the authorisation after giving an
opportunity of being heard and after recording the reasons for the same.’
Upon suspension or cancellation, the person concerned will be required
to keep the storage of the residue hazardous waste safe.

1.3. Procedure for recycling, reprocessing or

reuse of hazardous waste
For abovementioned purposes, one has to apply to the Central Pollution
Control Board (CPCB) with a consent letter from the SPCB for grant or
renew of registration. The CPCB after satisfying that the applicant is
utilising environmentally sound technology and possesses adequate tech-
nology facilities and equipment to recycle, reprocess and reuse hazard-
ous waste grant registration with necessary conditions.'° The application
shall be disposed of within 120 days from the date of receipt and such
registration is valid for five years. Before denying the application, oppor-
tunity of being heard must be given to the applicant.

1.4 Import and export of hazardous waste

The Ministry of Environment and Forest (MoEF) has been designated
as nodal agency for import and export of hazardous wastes. Import of
hazardous wastes in India has been totally prohibited," but it can be
imported for recycling or recovery or reuse.'? But it must be done with the
“prior informed consent” of the importing country. Part A of Schedule Il
of the rules has provided a list of such hazardous wastes which can he
imported with the prior consent of the importing country.’ Part B of
the rules gives a list of those hazardous wastes which do not require
prior informed consent.'* Such application shall be made to the Central
Government and to the SPCB, simultaneously. The Central Government
shall seek the comments of the SPCB and ensure that the importer has

8. R. 5(4).
9. R. 6(1).
10. See, R. 8.
11. See, Sch. VI of the rules provide a list such 30 wastes which can neither be imported
nor exported.
12S. 33 (ay.
13. This List is based on Annexure VIII of the Basel Convention on Transboundary
Movements.
14. This List is based on Annexure IX of the Basel Convention on Transboundary
Movements.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 211

valid registration for recycle, reuse or recovery and adequate facility and
arrangement for treatment and disposal of the wastes generated."
Similarly one who wants to export the hazardous wastes mentioned
in Schedule II is required to obtain “no objection certificate” from the
Central Government for transboundary movement.'® At the same time
he has to secure “no objection certificate” from the importing coun-
tries. Further the consignment must be fully insured. On the completion
of transboundary movement, the exporter shall inform the MoEF and
maintain the record of the same.

1.5 Illegal traffic

The export and import of hazardous waste shall be illegal if 1) it is with-
out permission of the Central Government; 2) permission is procured
through falsification, misrepresentation or fraud; 3) it does not conform
to the shipping details; 4) there is deliberate disposal of hazardous waste
in contravention of Basel Convention and general principles of interna-
tional! law.'” Under such circumstances, the exporter will be required to
re-export the waste within 90 days from its arrival into India.
These rules also have provisions for treatment, storage, disposal,
packaging, labelling and transportation of hazardous wastes.

1.6 Liability
The rules made it clear that the occupier, transporter and operator of
facilities of hazardous wastes shall be liable for “all damages caused to
the environment or third party due to improper handling of the hazard-
ous wastes or disposal of such wastes”. He shall also be liable to pay
penalties as levied by the SPCB with the prior approval of the CPCB.”
Any person aggrieved of the decision of the SPCB may appeal to the
appellate authority comprising of the Environment Secretary of the State
within 30 days from the date the orders are communicated to him.

1.7 Constitutionality of the rules

Research Foundation for Science, Technology and Natural Resource
Policyv. Uni India’, the Supreme Court examined the consti-
ofon CASE PILOT?

tutionality of the rule and declared that the rules are not violative of
Articles 21, 47 and 48-A. It was further clarified that these rules “are in

15. See, R. 16.

16. Procedure provided under R. 15.
B7OR A
18. R. 25.
19. (2012) 7 SCC 769: AIR 2012 SC 2627.
 |CHAP.
212 ENVIRONMENTAL LAW

, 47 and
aid and not in derogation of the provisions of Articles 21, 39(e)
48-A of the Constitution.”*°
But the court directed that the Central Government must bring these
rules in line with the Basel Convention and abovementioned articles.
In a subsequent order in this case the court reiterated that the Basel
Convention norms must be strictly followed before permitting entry of
any vessel suspected to be carrying toxic and hazardous material into
Indian territorial waters.*!

2. MANUFACTURE, STORAGE AND IMPORT OF

HAZARDOUS CHEMICALS RULES, 1989
Hazardous chemicals have been dealt with separately under these rules
of 1989. The following are the requirements which a chemical industry
shall be required to fulfil before it starts working or in case of an existing
industry within a period of 90 days of coming into operation of these
rules, i.e. 27 November 1989. These rules consist of 20 rules and 10
schedules.
1. Notification of sites. —No one can undertake any industrial activ-
ity which would produce a threshold quantity~* or more of an additional
hazardous chemical unless he submits a written detailed report about the
industry in accordance with Schedule 7 of the rules at least three months
before commencing that activity [R. 7]. Rules of 1989 have provided a
list of 684 such hazardous chemicals [Sch. 1]. Therefore, an industry
before its commencement is required to give the above notice.
2. Safety report. — Before a chemical industry starts functioning, it has
to prepare a safety report containing information specified in Schedule 8
at least 90 days before commencing that activity and in case of an exist-
ing industry within a period of 6 months after coming into operation
of these rules. [R. to] The report should be prepared with the help of
experts not associated with such industrial activity.
3. Preparation of on-site emergency plan by the occupier.—Under
Rule 13, the occupier is required to prepare and keep up-to-date on-site
emergency plan furnishing the details of how major accidents will be
dealt with. This plan shall include the names of persons responsible for
20. Research Foundation for Science v. Union of India, (2012) 7 SCC 769: AIR 2012
SC 2627, 2637; this case was filed by an NGO regarding the dumping of hazardous
wastes which resulted in the destruction of environment and particularly the fragile
marine biodiversity along the coastline of India. Import of such waste, including
hazardous waste oil, must be banned and should not be imported in India. The court
directed to implement the Basel and the Marine Pollution Convention 73/78 in India.
21. Research Foundation for Science v. Union of India, (2012) 7 SCC 764: AIR 2012
SC 2973.
22.Sch. 2, & Pt. 1 of Sch. 3.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 213

safety and who can take action according to the plan. A mock drill based
on the on-site emergency plan shall be conducted every six months.
4. Preparation of off-site emergency plans. —Rule 14 makes it oblig-
atory on the authorities concerned*’ to prepare and keep up-to-date an
adequate off-site emergency plan detailing how emergencies relating to
a possible major accident on that site will be dealt with. Further, such
plans should be prepared by the authority before a new industry starts
its activity or in case of an existing industrial activity within six months
of coming into operation of these rules [R. 14]. The authority concerned
shall ensure the rehearsal of the off-site emergency plan at least once in
a calendar year.
5. Information to the persons liable to be affected.—One of the
important features of the rules is to impose a mandatory duty on the
occupier of the industry to take appropriate steps to inform persons out-
side the site who are likely to be affected by a major accident. [R. 15]
Such information shall include:
(a) the nature of the major accident hazard; and
(b) the safety measures and the do’s and don’ts which should be
adopted in the event of a major accident.
6. Safety data sheet.—There is also a provision that the occupier of
an industry shall arrange to obtain or develop information in the form of
“safety data sheet” of the acute toxic, flammable or explosive substance.
[R. 17] It should be in accordance with the provisions of Schedule 9 of
the rules. Accordingly, “safety data sheet” shall include chemical iden-
tity, physical and chemical data, fire and explosive hazard data, reactiv-
ity data, health hazard data, preventive measures, emergency and first
aid measures and manufacturer/suppliers data, etc.
Every container of hazardous chemical shall be clearly labelled or
marked to identify
(a) the contents of the container;
(b) name and address of the manufacturer or importer of the hazard-
ous chemical; and
(c) the physical, chemical and toxicological data as per Schedule I.

3. RULES FOR THE MANUFACTURE, USE,

IMPORT, EXPORT AND STORAGE OF
HAZARDOUS MICROORGANISMS/GENETICALLY
ENGINEERED ORGANISMS OR CELLS, 1989”
These rules were notified by the Central Government in the exercise of
its power under Sections 6, 8 and 25, Environment (Protection) Act,

23. Sch. 5.
24. Vide GSR 1037(E), published in the Gaz. of India, Pt. II, S. 3(i), dt. 5-12-1989.
 214. ENVIRONMENTAL LAW [CHA P.

1986.25 These rules are applicable to the manufacture, import and stor-
age of microorganisms and gene-technological products. The rules cover
the areas of research as well as large scale applications of GMOs and
products made therefrom throughout India. They also covers up the
application of hazardous microorganisms which may not be genetically
modified. It is to be noted that hazardous microorganisms include those
which are pathogenic to human beings, animals as well as plants.
These rules are applicable to 1) the manufacture, import and stor-
age of microorganisms*® and gene technological products; 2) genetically
engineered’’ organisms, microorganisms and cells and correspondingly
to any substances and products and foodstuffs, etc., of which such cells,
organisms or tissues hereof form part; and 3) new gene-technologies
apart from those referred to in clauses (7) and (iv) of Rule 3; and these
rules shall apply to organisms/microorganisms and cells generated by the
utilisation of such other gene-technologies and to substances and prod-
ucts of which such organisms and cells form part.”*® These rule will also
be applicable to the following:
(a) sale, offers for sale, storage for the purpose of sale, offers and any kind
of handling over with or without a consideration;
(b) exportation and importation of genetically engineered cells or
organisms;
(c) production, manufacturing, processing, storage, import, drawing off,
packaging and repacking of the Genetically Engineered Products;
(d) production, manufacture, etc., of drugs and pharmaceuticals and food-
stuffs distilleries and tanneries, etc., which make use of microorgan-
isms/genetically engineered microorganisms one way or the other.
A Recombinant DNA Advisory Committee (RDAC) has been constituted
to review developments in biotechnology at national and international
levels and to recommend suitable and appropriate safety regulations for
India in recombinant research, use and applications from time to time.
Further, Review Committee on Genetic Manipulation (RCGM) has
also been constituted to monitor the safety related aspects in respect of
on-going research projects and activities involving genetically engineered

25. The rules were notified on 5-12-1989.

26. “Microorganisms” shall include all the bacteria, viruses, fungi, mycopl
asma, cell
lines, algae, protozoans and nematodes indicated in the schedule and those
that have
not been presently known to exist in the country or not have been discov
ered so far.
27. “Genetical engineering” means the technique by which herita
ble material, which
does not usually occur or will not occur naturally in the organism
or cell concerned,
generated outside the organism or the cell is inserted into said
cell or organism. It
shall also mean the formation of new combinations of genetic
material by incorpora-
tion of a cell into a host cell, where they occur naturally
(self cloning) as well as mod-
ification of an organism or in a cell by deletion and remo
val of parts of the heritable
material.
28. Ru 2t
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 215

organisms/hazardous microorganisms.’ It shall bring out manuals of

guidelines specifying procedyre for regulatory process with respect to
activities involving genetically engineered organisms in research, use
and applications including industry with a view to ensure environmental
safety.
An occupier or any person including research institutions handling
micro-organism/genetically engineered organisms shall also establish
Institutional Biosafety Committee (IBSC).
A Genetic Engineering Approval Committee (GEAC) shall be consti-
tuted to approve import, export, transport, manufacture, process, use or
seli of any hazardous microorganisms or genetically engineered organ-
isms/substances or cells.°° Rule 11 also provides that foodstuffs, ingre-
dients in foodstuffs and additives including processing aids containing
or consisting of genetically engineered organisms or cells, shall not be
produced, sold, imported or used except with the approval of the GEAC.
Microorganisms or genetically engineered organisms, products or
cells shall be dealt with under two major heads; animal pathogens and
plant pests. List has been provided under the schedule of the rules. And
the microorganisms laid down in the schedule are 1) bacterial agents,
2) fungal agents, 3) parasitic agents, 4) viral, rickettsial and chlamydial
agents, 5) special category.”
Other rules include provisions relating to supervision, penalties,
responsibility to notify interruptions or accidents, inspections and infor-
mation regarding finance, appeals and exemptions.

4. BIO-MEDICAL WASTE (MANAGEMENT

AND HANDLING) RULES, 1998°*
These rules are applicable to all those persons who generate, collect,
receive, store, transport, treat, dispose, or handle biomedical waste in
any form. Biomedical waste has been defined:
any waste, which is generated during the diagnosis, treatment or immunisa-
tion of human beings or animals or in research activities pertaining thereto
or in the production or testing of biologicals and including categories men-
tioned in Schedule I. Schedule I has mentioned ro categories of bio-medical

29. The Review Committee on Genetic Manipulation shall include representatives of

t) Department of Biotechnology, 2) Indian Council of Medical Research, 3) Indian
Council of Agricultural Research, 4) Council of Scientific and Industrial Research,
and 5) Other experts in their individual capacity. Review Committee on Genetic
Manipulation may appoint sub groups.
30. R. 7(1).
31. Rr. 5 and 6.
32. $.0. 630(E), dt. 20-7-1998. Notified in the Official Gazette, Extra., dt. 27-7-1998;
see, for detailed discussion, C.M. Jariwala, The Bio-Medical Waste Rules: Direction
of Law & Justice (1999) 41 JILI 368.
216 ENVIRONMENTAL LAW (CHAP. »

wastes which include human anatomical waste, animal waste, microbiology

and biotechnology waste, waste sharps, discarded medicines and cytotoxic
drugs, solid waste, liquid waste, chemical waste, incineration ash.
Rule 4 makes a duty of every occupier of an institution generating bio-
medical waste which includes a hospital, nursing-home, clinic, dispen-
sary, veterinary institution, animal house, pathological laboratory, blood
bank, to take all steps to ensure that such waste is handled without any
adverse effect on human health and the environment.
Schedule I provides various methods for disposal of such wastes
according to their nature. Such methods include 1) incineration, 2) deep
burial, 3) local autoclaving, 4) microwaving, 5) mutilation, 6) disposal in
landfills, 7) disinfection, 8) chemical treatment, according to the nature
of the category provided in the schedule.
Rule 6 provides for segregation of wastes in different coloured plas-
tic bags and labelled as per Schedule III, and they be packed safely.
Such waste shall be transported only in authorised vehicles. Further, no
untreated biomedical waste shall be kept beyond a period of 48 hours
without the permission of the competent authority in this regard.
Proper records regarding the generation, collection, reception, stor-
age, transportation, treatment and disposal of biomedical wastes is to be
maintained by the institutions. [R. 11] The institutions are also under an
obligation to report an accident at a site where biomedical waste is han-
dled or during transportation to the authority prescribed for the purpose.
There are 14 rules in all and 6 schedules attached to them. It is a wel-
come venture to deal with noxious hazardous wastes produced in cities.

$5. PLASTIC WASTE (MANAGEMENT

AND HANDLING) RULES, 2011
The MoEF, Indian Government, has issued a new notification? which
supersedes the Recycled Plastics Manufacture and Usage Rules, 1999.
The MoEF, Mr Jairam Ramesh, while releasing the rules, stated:
It is impractical and undesirable to impose a blanket ban on the use of plastic
all over the country. The real challenge is to improve municipal solid waste
management systems.
In addition to the privatization and mechanization of the municipal solid
waste management systems, we must be sensitive to the needs and concerns
of the lakhs (thousands) of people involved in the informal sector.
It consists of 12 rules and an “annexure” regarding the “Protocols of
Indian Standards”.
Rule 3(7) has defined “plasticé waste” as “any plastic product such
as carry bags, pouches or multilayered plastic pouch or sachet, etc.,
33. Published in the Gaz. of India, dt. 4-2-2011, Ministry of
Environment and Forests,
Noti. No. $.0. 249(E), dt. 4-2-2011.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 217

which have been discarded after use or after their intended life is over”>*.
Further it provides that “waste management” means the scientific reduc-
tion, reuse, recovery, recycling, composting or disposal of plastic waste.

5.1 Authorities
For the purpose of implementation of the rules regarding authorisation,
recycling, manufacture and disposal, the SPCB and for enforcement of
the provisions regarding use, collection, segregation, transportation and
disposal of post consumer plastic waste, the municipal authorities have
been appointed.*
The SPCB or Pollution Control Committee have been authorised to
grant registration or renewal of registration for manufacturing, recycling
of carry bags or multilayered plastics prior to the commencement of the
production.** This registration shall be valid for three years. A State level
advisory body shall also be appointed to monitor the implementation of
these rules.
The municipal authority has been conferred the responsibility for set-
ting up, operationalisation and coordination of the plastic waste man-
agement system and for performing the related functions, like
1. to ensure safe collection, storage, segregation, transportation, pro-
cessing and disposal of plastic waste;
2. to ensure that no damage is caused to the environment during this
process;
3. to ensure setting up of collection centres for plastic waste involving
manufacturers;
4. to ensure its channelisation to recyclers;
5. to create awareness among all stakeholders about their
responsibilities;
6. to engage agencies or group working in waste management includ-
ing waste pickers; and
7. to ensure that open burning of plastic waste is not permitted.
[R. 6(c)].
Further, the municipal authority shall encourage the use of plastic waste by
adopting suitable technology such as road construction, co-incineration,
etc., and residue will be disposed of in accordance with Schedule II of the
Management of Municipal Solid Waste and Schedule III of the Municipal
Solid Wastes (Management and Handling) Rules, 2000.

34. R. 3(L) defines “plastic” as “material which contains as an essential ingredient a high
polymer and which at some stage in its processing into finished products can be
shaped by flow”.
Jo. ts 4
36.R. 9.
 [CHAP.
218 ENVIRONMENTAL LAW

5.2 General conditions

1. For storing, packing or selling gutkha, tobacco and pan masala,
use of plastic materials in sachets has been banned. [R. 5(d)] |
>». Foodstuffs will not be allowed to be packed in recycled plastics or
compostable plastics. [R. 5(0)]
3. Recycled carry bags shall conform to specific BIS standards.
[R. 5(e)carry : |pigments
4. Plastic bags shall either be white or only with those
and colourants which are in conformity with the bar prescribed
by the Bureau of Indian Standards (BIS) [IS 9833: 1981]. This shall
apply expressly for pigments and colourants to be used in plastic
products which come in contact with foodstuffs, pharmaceuticals
and drinking water. [R. 5(a)]
5. No person shall manufacture, stock, distribute or sell any carrying
bag made of virgin or recycled or compostable*’ plastic, which is
less than 40 microns in thickness. [R. 5(c)]

5.3. Marketing and labelling

The rules have made it compulsory that each plastic bag and multilay-
ered plastic pouch or sachet shall bear name, registration number of the
manufacturer of the bags and whether they are recycled.**
One of the major provisions under the new rules is the explicit recog-
nition of the rule of waste pickers. The new rules require the municipal
authority to constructively engage agencies or groups working in waste
management including these waste pickers. This is the very first time that
such a special dispensation mechanism has been evolved.
It also provides that recycling of plastics shall be undertaken strictly
in accordance with the BIS specification [IS 14534: 1998] entitled “the
guidelines for recycling of plastics”. There are only nine rules in it. These
rules do not provide for the disposal of plastic bags or containers or min-
imise the use of plastics as has been done by various States on their own.
The Madhya Pradesh High Court in Sarita Agnihotri v. State of M.P.*°
issued 23 guidelines for implementation of the rules. It was brought to
the notice of the court that environment as a whole and wildlife of the
State particularly are being seriously affected by the indiscriminate use
and throwing of the polythene bag/material. Moreover, the government
37. R. 3(d):
Compostable plastics means plastic that undergoes degradation by biological pro-
cesses during composting to yield CO2, water, inorganic compounds and biomass
at a rate consistent with other known compostable materials and does not leave
visible, distinguishable or toxic residue.
38.R. 8.
39. AIR 2004 NOC 210 (MP).
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 219

had not appointed “authority” as per requirement of Rule 3 of the rules

of 1990. The court directed the government to constitute the author-
ity within three months from the date of order and to implement the
Recycled Plastics (Manufacture and Usage) Rule, 1990.

6. BATTERIES (MANAGEMENT AND

HANDLING) RULES, 2001*°
The Central Government has notified the Batteries (Management and
Handling) Rules, 2001 in exercise of the powers conferred by Sections 6,
8 and 25, Environment (Protection) Act, 1986. It consists of 14 rules
and 1 schedule. These rules shall apply to every manufacturer, importer,
re-conditioner, assembler, dealer, recycler, auctioneer, consumer and bulk
consumer involved in manufacture, processing, sale, purchase and use of
batteries or components thereof.*! The rules have fixed the responsibil-
ity of a manufacturer, importer, assembler and re-conditioner to ensure
that the used batteries (used lead acid batteries) are collected back and
send to the authorised recyclers. They are under a duty to create public
awareness through advertisements, publications, and posters or by other
means with regard to the following:
1. Hazards of lead.
2. Responsibility of consumers to return their used batteries only to
the dealers or deliver at designated collection centres.
3. Addresses of dealers and designated collection centres.
A manufacturer, importer, assembler and re-conditioner must also use
the international recycling sign on the batteries.’ It has fixed the liability
of the dealers, recycler, consumer or bulk consumer, auctioneer for the
proper collection, use, transportation, return of used lead acid batter-
ies to the designated persons, i.e. to the dealer, manufacturer, importer,
assembler, registered recycler only. These rules have prohibited throw-
ing away of batteries in the open or dispose them in any manner other
than returning it to the dealer or recycler. Every recycler of used lead
acid batteries shall register with the Joint Secretary, MoEF or any officer
designated by the Ministry or an agency designated by it for grant of
registration or renewal. The SPCB shall appoint the “authority” to look
after the proper compliance of the rules.** The recycler also must possess
environmentally sound facilities for recycling/recovery.

40. Vide Noti. No. $.O. 432(E). Rules were notified on 16-5-2001. There are 20 paras in
these rules.
41. R. 2.
42.R. 4.
43.R. 12.
 (CHAP.
220 ENVIRONMENTAL LAW

7, WATER (PREVENTION AND

CONTROL OF POLLUTION) ACT, 1974
d
The Water (Prevention and Control of Pollution) Act, 1974 was passe
or
for the prevention and control of water pollution and for maintaining
restoring wholesomeness of water. “This Act 1s also intended to ensure
that domestic and industrial effluents are not allowed to be discharged
into watercourses without adequate treatment.” For this purpose the
Act prohibits the use of a stream or well for the disposal of poisonous,
noxious or polluting matter. [$. 24] Industries have also been prohibited
from discharging trade effluents into a stream or well or sewer or land
without the previous consent of the SPCB. [S. 25] Contravention of these
provisions is liable to be punished with imprisonment for a term which
shall not be less than one year and six months but which may extend to
six years and with fine. [S. 44]

8. FACTORIES ACT, 1948

The Factories (Amendment) Act, 1987 was passed by the Indian
Parliament “to provide specifically for the safeguards to be adopted
against use and handling of hazardous substances by the occupiers of
factories and laying down of emergency standards and measures”. It was
necessary in view of substantial modernisation and innovation in the
industrial field and mushroom growth of chemical industries which deal
with hazardous and toxic substances.
A separate Chapter IV-A, entitled “Provisions Relating to Hazardous
Process”, was incorporated in the Factories Act, 1948 in 1987. It consists
of eight sections—from Sections 41-A to 41-H. Section 41-A provides
that the State Governments shall set up Site Appraisal Committees for
the appraisal of the initial location of a factory involved in hazardous
process or its expansion which they would examine and recommend to
the State Government for its establishment or expansion. It has been
made an obligatory duty of the occupier to disclose all the information
including health hazards and the measures to overcome such hazards in
the manufacturing, transportation, storage and other processes to the
workers, the Chief Inspector, the local authority and the general public
in the vicinity. [S. 41-B] Such information shall include characteristics of
wastes and the manner of their disposal.
It is also a duty of the occupier to draw up an “on-site emergency
plan” and detailed “disaster control measures” and to make them known
to the workers and to the nearby dwellers. [S. 41-B] The maximum per-
missible limits of exposure of various chemicals and toxic substances
have also been laid down in Schedule II which must be adhered to by
the occupier.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 221

It is also significant to note that Section 41-G has made it obligatory

for the occupier of a factory, where hazardous substances are used or
handled, to set up a Safety Committee.

8.1 Penalty under the Factories Act

Strict punishment has been provided by the Act for contravening the
provisions of Chapter IV-A of the Act. The erring occupier shall be pun-
ished with imprisonment which may extend to seven years and with fine
which may extend to ¥2,00,000 and in case the failure or contravention
continues, with additional fine which may further be extended. [S. 96-A]

9. E-WASTE (MANAGEMENT AND

HANDLING) RULES, 2011
Looking to growing problem of e-wastes, the Central Government in the
exercise of the powers provided under Sections 6, 8 and 25, Environment
(Protection) Act, 1986 has notified these rules.** It consists of 18 rules
divided in six chapters.** The rules aim to enable the recovery and/or
reuse of useful material from e-waste, thereby reducing the hazardous
wastes destined for disposal and to ensure the environmentally sound
management of all types of waste of electrical and electronic equipment.
Rule 3(k) defines “e-waste” as “waste electrical and electronic equip-
ment, whole or in part or rejects from their manufacturing and repair
process, which are intended to be discarded”. Further, Rule 3(7) defines
“electrical and electronic equipment (EEE)” as “equipment which is
dependent on electric currents or electromagnetic fields to be fully
functional”.
The rules have fixed the responsibility of the “producer”, “collection
centers”, consumers, “dismantlers”, and “recycler” of the e-wastes. They
have to seek “authorisation” from the SPCB. Everyone is directed to
adopt “environmentally sound technology”, which means “equipment
which is dependent on electric currents or electromagnetic fields to be
fully functional including those used for the generation, transfer and
measurement of such currents and fields falling under the categories set
out in Schedule I”.
Threshold limits has been prescribed for the producer to reduce the use
of certain hazardous substances in electrical and electronic equipment.
In the event of such reduction in the hazardous materials used in the
electrical and electronic equipment, the detailed information on the con-
stituents of the equipment shall be provided in the product information
44. Noti. No. $.0. 1035(E). Notified on 12-5-2011. These rules will come into force on
1-5-2012 [R. 1].
45. Three schedules have also been attached to these rules.
222 ENVIRONMENTAL LAW [CHAP.

booklet by the producer. Every producer(s), dealer(s), collection centre(s),

refurbisher(s), dismantler(s), recycler(s), auctioneer(s) consumer(s) or bulk
consumer(s) shall not import used electrical and electronic equipment in
India for use without the compliance of these rules.
One has to obtain a “No Objection Certificate” from the SPCB for
the transportation of the e-waste and also intimate the SPCB of the State
of transit.

10. PUBLIC LIABILITY INSURANCE ACT, 1991

This Act aims to provide immediate relief to the persons affected by
accidents occurring while handling any hazardous substance and for
matters connected therewith or incidental thereto. It came into force on
22 January 1991.
This Act is in consonance with the spirit of Principle 13 of the Rio-
Declaration*® which states that the States shall develop national law
regarding liability and compensation for the victims of pollution and
other environmenta! damage, and to provide immediate relief to them.
The Madhya Pradesh High Court has declared that “electricity” is
a hazardous substance as its physico-chemical properties are definitely
liable to cause harm to human beings and other living creatures, plants,
microorganisms, etc. Irrespective of its quantity or proportion, it is haz-
ardous within Section 2(e), Environment (Protection) Act, 1986 and
Section 2(d), Public Liability Insurance Act, 1991. Section 3(2), Public
Liability Insurance Act speaks about “the strict liability without fault”
in case of such accidents involving death due to hazardous substance
and it is not necessary for the claimant to plead and establish the cause
of that death. Moreover, it is not necessary for electricity to be notified
under Section 2(d) of the Act of 1991, as in any quantity electricity is
hazardous.”
The Act exacts an obligation on all the industries dealing with haz-
ardous substances to give specified relief where death or injury is caused
to any person or property due to the wrongful act, negligence or default
of any person. The Act applies also to persons other than workmen.
Therefore, every owner of the industry handling hazardous substances
has to take one or more insurance policy. Government owned and con-
trolled factories are exempted from this clause. [S. 4|
Rule to of the Public Liability Insurance Rules, 1991 has fixed the
liability of the insurer to pay relief under an award to several claimant
arising of one accident and that shall not exceed 5 crores and in case of
more than one accident, during one year, shall not exceed = 15 crores in

46.UN Declaration on Environment and Development (1992).

47. M.P. SEB v. Collector, AIR 2003 MP 156.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 223

the aggregate. All the insurers are liable to contribute to the Environment
Relief Fund (ERF) a sum equal to the premium payable to the insurer.
The Collector, after making proper enquiry into the claim, will dis-
pose of expeditiously such claim—say within three months of the receipt
of the application. |S. 7] According to Section 8, this right to claim relief
is “in addition to any other right to claim compensation ... under any
other law ...”. Punishment provisions have also been provided under the
Act.
The Central Government has been authorised to constitute an Advisory
Committee on matters relating to insurance policy.
Punishment for non-compliance with the provisions of the Act have
also been provided for in offences by companies and government depart-
ments. But no court can take cognizance of the offence unless the com-
plaint is filed by the Central Government/authority or by a person who
gives a notice of 60 days to the Central Government of his intention to
file a complaint. [S. 18]
Thus, the Public Liability Insurance Act, 1991 is a welcome venture
which would help a lot in the proper management of hazardous sub-
stances. It is suggested that this benevolent piece of legislation must be
reviewed from time to time, looking to the fast-changing scenario in
this field. But, still, this Act needs revamping as the limitation period of
five years under Section 6(3) to file a case is highly inadequate because
sometimes an ailment occurs after five or six years. Sometimes doctors
cannot relate the illness to the hazardous activity in the absence of sci-
entific proof which takes more than five years. Therefore, it is suggested
that this limitation must be done away with. Further, cash compensation
provided for under various heads of the schedule is very meagre.
The Madhya Pradesh High Court, in an important judgment,** has
made it clear that the liability of the owner under Section 3(1r) to give
relief as specified in schedule for death, injury or damage, is independent
of the obligation under Section 4(1) of the owner to take out an insurance
policy to cover the liability. The owner will be liable under Section 3(r)
even if he has not taken any insurance policy for loss caused to man or
material. The obligation of Section 4(1) to take an insurance policy is
essential before “he starts handling any hazardous substance”. Where
an owner does not deal with hazardous substance, he is not under an
obligation to take out an insurance policy. Therefore, if no hazardous
substance are either manufactured/handled in the vehicle gun factory, as
in this case, the owners are not required to take out any insurance policy
as required under Section 4(1).4? The maximum aggregate liability of the
48. Gyan Prakash v. Ordnance Factory, AIR 2007 MP 118.
49. The minimum amount for which insurance policy is to be taken out is equivalent
to paid-up capital of the undertaking factory. Maximum statutory limit for which
insurance policy is to be taken out is ¥50 crore.
 [CHAP.
224 ENVIRONMENTAL LAW

insurer to pay relief to several claimants shall not exceed 5 crores and
d
if more than one accident in a year, the relief money shall not excee
¥ 15 crores in aggregate.”°
The court directed the Central Government to notify, as provided
under Rule 7, the scheme specifying the authority in which the ERF has
been vested and the manner in which the money shall be drawn from the
relief fund within three months.

11. MUNICIPAL SOLID WASTES

(MANAGEMENT AND HANDLING) RULES, 2000°!
The MoEF, in the exercise of the powers conferred under Sections 3, 6
and 25, Environment (Protection) Act, 1986, has notified these rules to
regulate the management and handling of municipal solid wastes. It con-
sists of nine rules and four schedules.
Rule 3(xv) defines “municipal solid waste” as follows:
“municipal solid waste” includes commercial and residential wastes gener-
ated in a municipal or notified areas in either solid or semi-solid form exclud-
ing industrial hazardous wastes but including treated bio-medical wastes.
Rule 3 has also defined various terms used in the rules such as anaerobic
digestion, biodegradable substance, biomethanation, disposal, landfill-
ing, recycling, leachate, segregation, vadose water, vermicomposting, etc.
Rule 4 declares that every municipal authority shall be responsible for
the implementation of the rules and for any infrastructure development
for collection, storage, segregation, transportation, processing and dis-
posal of municipal solid waste. Overall responsibility has been given to
the Secretary in charge of the Department of Urban Development of a
State/Union Territory and the District Magistrate/Deputy Commissioner
of districts in particular to implement the provisions of the rules.
The CPCB and the SPCB have the responsibility of monitoring com-
pliance with standards regarding groundwater, ambient air quality, lea-
chates and compost quality including incineration standards as provided
in Schedules II, I] and IV of the rules of 2000. Further, the municipal
authority will apply for the setting up of waste processing and disposal
facility including landfills, to the SPCB, which shall issue the authorisa-
tion within 45 days for a given period. Such authorisation shall be valid
for one year only[R.6].
The municipal solid waste shall be managed and handled with the
compliance criteria and procedure laid down in Schedule I. The sched-
ule provides parameters of 1) collection of municipal solid waste;

50. Public Liability Insurance Rules, 1992, R. 10 (w.e.f. 24-3-1992).

51. Published in Gaz. of India, Extra., Pt. II, S$. 3(ii), dt. 3-10-2000; and notified by the
Ministry of Environment and Forests vide Noti. No. $.O. 908 (E), dt. 25-9-2000.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 225

2) segregation; 3) storage; 4) transportation; 5) processing; and 6) dis-

posal of municipal solid wastes, and their compliance criteria. Schedule
III provides for specifications ae landfill sites and Schedule IV laysdown
the “standards for composting, treated leachates and incineration”.
The Supreme Court referred to the above rules of 1999 in Almitra H.
Patel v. Union of India*, while dealing with the question of solid waste
disposal and cleaning of metropolitan cities particularly Delhi—capital
of India. It directed the assurance of proper and scientific disposal of
waste in a manner so as to subserve the common good and to keep the
city clean. Municipal Corporation of Delhi/New Delhi were also author-
ised to levy and recover charges and costs from any person littering or
violating the provisions.
Again in 2004°°, the Supreme Court pointed out the complacency and
indifference on the part of the SPCB in implementing these rules. The
court also asked the Central Government to explain in its affidavit as to
why the suggested Non-Governmental Review Committee is not consti-
tuted to inspect the functioning of the existing disposal plants. Further,
the SPCB were directed to Rule 8 which mandates the Boards to send
annual reports to implement Rule 15 by September every year.

SCHEDULE I
IMPLEMENTATION SCHEDULE

Compliance criteria Schedule

Setting up of waste processinganddisposal facilities == By 31-12-2003 or earlier “ee
“Monitoring theperformance ofwaste processing and disposal facilities «=» Onceinsixmonths
| improvement of‘existing landfill sitesas per provisions of these rules i By31-12-2001 orrearlier t
Identification of landfill sites for future use and making site(s) ready foroperation By 31-12-2002 or earlier

12. HAZARDOUS WASTES, TOXIC

CHEMICALS AND JUDICIAL ACTIVISM
The Indian Supreme Court has declared time and again that the right
to healthful environment, pollution free air, potable water is one of the
fundamental rights. Though, the Indian Constitution does not expressly
mention it but it is implicit within the penumbra of the right to life and
personal liberty guaranteed under Article 21.”
Therefore, the Indian Supreme Court has entertained writ petitions
under Article 32, where health hazardous and pollution disseminating

52. (2000) 2 SCC 679: AIR 2000 SC 1256.

53. Almitra H. Patel v. Union ofIndia, WP (C) No. 888 of 1996, order dt. 3-2-2004 (SC).
54. F.K. Hussain v. Union ofIndia, AIR 1990 Ker 321; Kinkri Devi v. State of H.P., AIR
1988 HP 4.
 226 ENVIRONMENTAL LAW |[CHAP.

activities have been ascertained/reported. In M.C. Mehta y. Union

of India’, the Supreme Court directed the Kanpur City Municipal
Corporation and other authorities concerned to take appropriate steps to
stop trade effluents of tanneries from entering into the holy river Ganga.
It was pointed out by the court that to keep the river Ganga clean is a
statutory obligation on the Kanpur City Municipal Corporation.
Similarly, the court declared in Chhetriya Pardushan Mukti Sangharsh
Samiti v. State of U.P.°° that every citizen has a fundamental right to
enjoy quality of life and living as contemplated by Article 21 of the
Constitution and violation of it will be punished adequately. Thus, courts
have assumed the role of guardians and protectors against health hazard-
ous activities and pollution disseminating activities affecting, directly or
indirectly, the flora and fauna, microorganisms and property.
It has been observed by the Supreme Court that a national policy has
to be evolved for the location of chemical and other hazardous industries
in areas where the population is scanty. Bhagwati CJ, while delivering
judgment in M.C. Mehta v. Union
of India’, observed:
CASE PILOT there is a certain element of hazard or risk inherent in the very use of science
and technology and it is not possible to totally eliminate such hazard or risk
altogether. We cannot possibly adopt a policy of not having any chemical or
other hazardous industries merely because they pose hazard or risk to the
community. ... We can only hope to reduce the element of hazard or risk to
the community by taking all necessary steps ... .
An enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the per-
sons working in the factory and residing in the surrounding areas owes an
absolute and non-delegable duty to the community to ensure that no harm
results to anyone on account of hazardous or inherently dangerous nature of
the activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety ... and it would be no answer
to the enterprise to say that it had taken all reasonable care and that the harm
occurred without any negligence on its part.58
One of the significant suggestions of the court was to set up an Ecological
Science Research Group consisting of independent, professionally compe-
tent experts in different branches of science and technology, who would
act as an information bank for the court; and setting up “Environmental
Courts on regional basis with one professional judge and two experts

SS. (1988) 1 SCC 471: 1988 SCC (Cri) 14t.

56. (1990) 4 SCC 449: AIR 1990 SC 2060.
57. (1986) 2 SCC 176: AIR 1987 SC 965.
58. ne Mehta v. Union of India, (1987) 1 SCC 395: 1987 SCC (L&S)
37: AIR 1987
SC 1086.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 227

from the Ecological Science Research Group keeping in view the nature
of the case and expertise required for its adjudication”.
A memorable judgment was delivered by the Supreme Court in Union
athide Corea v. Union of India*’. It was a sequel to the famous Charan
| Sahu v. Unionof India® (Bhopal Gas Disaster case) recording a set- CASE PILOT
ie San arcu the Union of India and the Union Carbide Corporation
(UCC). It was declared by Ranganath Misra J that the principle in M.C.
Mehta vy. Union of India®! that in toxic mass tort actions arising out of a
hazardous enterprise, the award for damages should be proportional to
the economic superiority of the offender cannot be pressed to assail the
settlement reached in the Bhopal Gas Disaster case. In cases of mass tort
action, like this, quantification of damages can be had without attaching
much importance to individual injuries. It was further declared by the
court that if the settlement fund is exhausted, the Union of India should
make good the deficiency. Orders were issued to establish a full-fledged
hospital equipped as specialist hospital for treatment and research of
MIC gas-related afflictions, operation expenses of which were to be
borne by the UCC. The court also directed the Union of India to obtain
appropriate medical group insurance cover to take care of compensation
for the children born or yet to be born to exposed mothers—the pro-
spective victims. The premium was to be paid out of the settlement fund.
Recently pronounced decisions of the Supreme Court make it amply
clear that the “precautionary principle” and “polluter pays principle”
have to be applied in cases dealing with the problems of untreated efflu-
ents and toxic wastes discharged by industries. In Vell Citizens’
Welfare Forum y. Union of Indiaa°*, the Supreme Court ‘quoted with CASE PILOT
approval the case of Indian Council for Enviro-Legal Action v. Union of
India® and declared that looking to widespread ramifications and grav-
ity of the problem, “remediation of the damaged environment is a part of
the process of ‘sustainable development’ and as such the polluter is liable
to pay the cost of the individual sufferers as well as the cost of reversing
the damaged ecology”. Further, it does not absolve a person from his
criminal liability. Therefore, though our present-day statutes do not have
such laws to deal with these problems effectively and efficaciously, but
the courts are taking care of these threatening problems.
The “precautionary principle” has been explained as follows:
1. Environmental measures by the State Government and the statu-
tory authorities —must anticipate, prevent and attack the causes
of environmental degradation.
59. (1991) 4 SCC 584: AIR 1992 SC 317.
60. (1990) 1 SCC 613: AIR 1990 SC 1480.
61. (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
62. (1996) 5 SCC 647: AIR 1996 SC 2715.
63. (1996) 3 SCC 212: AIR 1996 SC 1446.
 228 ENVIRONMENTAL LAW [CHAP.

2. Where there are threats of serious and irreversible damage, lack of

scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
It was also declared by the court that both the principles, the “precau-
tionary principle” and the “polluter pays principle”, have been accepted
as a part of the law of the land. Fixing the “absolute liability” of the pol-
luters, the court observed that once the activity carried on is hazardous
or inherently dangerous, the person carrying on such activity is liable to
make good the loss caused to any person by his activity, irrespective of
the fact whether he took reasonable care while carrying on his activity.
Both the abovementioned cases were quoted with approval in M.C.
Mehta v. Union of India®* (Taj Trapezium case). In this case the peti-
tioner submitted that substantial level of pollution of sulphur dioxide
and particulate matter from the industries and Mathura refinery were
causing acid rains and these had a corroding effect on the gleaming white
marble of the Taj Mahal. The Supreme Court ordered for the shifting of
the industries from the Taj Trapezium or they should use natural gas,
otherwise they were to be closed down.
In a recently decided case, the Indian Supreme Court has made it very
clear that the directors/managers/partners would also be held responsible
if they were responsible for construction of the plant, for the treatment of
highly polluting and toxic effluents and will be prosecuted and punished
under Section 16, Environment (Protection) Act and Water (Prevention
and Control) of Pollution Act, 1974.%
°°, the Supreme
CASE PILOT Court discussed various provisions of the Basel Convention and
Hazardous Wastes Rules, 1989 (amended in 2000/2003) regarding the
import of furnace oil, a hazardous waste, and its disposal. The court dis-
cussed the precautionary principles and polluter pays principle and came
to the conclusion that it must be disposed of by incineration and the cost
of disposal which may be termed as “cost of avoiding the pollution” must
be borne by the polluter, the importer.
Hot-mix plants were also ordered to be closed down by the Supreme
Court which were in the vicinity of Indira Gandhi International Airport.
But, later on, looking to the necessity of hot-mix plants for resurfacing
the Indira Gandhi International Airport and its national importance, the
court allowed the hot-mix plants to operate for one year with certain
conditions.*” The hot-mix plants must be environment friendly and the

64. (1997) 2 SCC 353: AIR 1997 SC 734.

65. U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000
) 3 SCC 745.
66. (2005) 10 SCC 510. The court also referred to the case of
Deepak Nitrate Ltd. v.
State of Gujarat, (2004) 6 SCC 402.
67. M.C. Mehta v. Union of India, (1999) 7 SCC 522:
AIR 1999 SC 2367.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 229

particulate matter was not to exceed the permissible limits was the cau-
tion of the court.
An in-depth study of the abovementioned laws and regulations reveal
that the problems of hazardous wastes and toxic chemicals have not
been comprehended fully and properly. We are still ignoring the impend-
ing danger which is almost ready to engulf the human race. Menacing
gestures of the problems of hazardous wastes and toxic chemicals are
threatening the existence of mankind. Big continents have almost become
the dumping grounds of hazardous wastes. Many European countries
(England, Germany, Italy, etc.) and South African countries are provid-
ing dumping and disposal sites for money, thus inviting endemic/endless
problems. Hazardous wastes and toxic chemicals are a premonition of a
terrible disaster. The World Health Organisation (WHO) has estimated
that over 5,00,000 persons get poisoned by pesticides every year in Third
World countries.
Mass disaster and multinational liability have further complicated
and confounded the problem. The hazardous wastes of one country are
transported to another country for disposal purposes. So it crosses the
boundaries of many countries. The transboundary transportation prob-
lem multiplies the problem as carrying hazardous wastes means carrying
dangerous virus of epidemic diseases. It is high time we comprehended
the problem and took necessary, safe and adequate steps to contain or, if
possible, to wipe out the problem.

13. ATOMIC OR NUCLEAR WASTE

Section 17, Atomic Energy Act, 1962 envisages present and future
safety of our Nuclear Power Plants (NPPs) and lives and environment
around. As a consequence of that the Atomic Energy (Radiation and
Protection) Rules, 2004 have been framed. Other rules for safe work-
ing, maintenance and disposal, the government has come out with the
Industrial Radiography (Radiation Surveillance) Procedure, 1980, the
Atomic Energy (Factory) Rules, 1996, the Atomic Energy (Safe Disposal
of Radioactive Waste) Rules, 1987, the Atomic Energy (Working of
Mines, Minerals and Handling of Prescribed Substances) Rules, 1984,
the Safety Code on Management of Radioactive Waste, 2007, etc. The
Management of Radioactive Waste Code, 2007 specifically refers to
protection of human health and the environment. Therefore, all atomic
energy plants have to adopt safe procedure and safety measures. The
Supreme Court recently declared that the radiation as well as the dis-
charge of water from NPPs to the seashore will have serious impact on
the marine ecology/life. The court also directed that adequate measures
must be taken by such NPPs in accordance of the prevailing rules in India
and international conventions and treaties like the Vienna Convention
 [CHAP.»
230 ENVIRONMENTAL LAW

on on
on Physical Protection of Nuclear Material, 1980; the Conventi
Assistance in case of Nuclear Accident or Radiological Emergency,
on on
1986; the Convention on Nuclear Safety, 1994; the Conventi
on
Early Notification of a Nuclear Accidents, 1986; the Joint Conventi
on Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management, 2001 —first legal instrument.
India has also passed the Civil Liability for Nuclear Damage Act
in 2010 which aims to provide a civil liability for nuclear damage
and prompt compensation to victims of a nuclear accident through a
“no-fault liability”. It states that the liability of the operator is to the
tune of 1500 crores and maximum liability to rupees equivalent to 300
million Special Drawing Rights (SDRs) or such higher amount as the
Central Government may specify by notification.

14. THIRD WORLD COUNTRIES

Third World countries have proved to be good dumping grounds for var-
ious types of wastes. Some of the countries have accepted the wastes of
other countries for a consideration without visualising the dangers inher-
ent in it. Therefore, wastes management has to be given new thought and
direction.
The role of law in managing hazardous wastes and toxic substances
is very important. A study of the present-day laws reveals that they have
failed to achieve the desired objectives. It seems that 1) the laws have
been made in haste without comprehending the problems fully; 2) they
are not properly couched; 3) there is lack of will to implement them;
4) there is no proper machinery to implement them efficiently and effec-
tively; and 5) piecemeal legislation has further confounded the problem.
Therefore, it is a sine qua non to improve upon the present-day situation
by adopting various legal and administrative measures.
As per the then Chairman of the CPCB, Dr D. Biswas, the Board
has formed a comprehensive strategy to deal with the menace of indus-
trial pollution. Such a strategy included invent-enforisation of industries
to identify polluted estate, assessment of water quality and ambient air
quality based on the on-going monitoring programme, study on treat-
ment and disposal of hazardous wastes and to strengthen the control
mechanism. There is much to be done in this regard.
The above discussion reveals that much attention has not been paid to
this field. Other countries have made much headway in this regard but
the present-day Indian law has not been able to make any dent in the
problem and contain and control the problem of hazardous wastes. This

68. See G. Sundarrajan v. Union of India, (2013) 6 SCC 620.

69. S.. 6, Civil Liability for Nuclear Damage Act, 2010.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 231

necessitates us to review and reshape Indian laws to deal with menacing

pollution problems before it is too late. Therefore, an in-depth study of
the pollution problem should be made and experts should examine all
the aspects of it and suggest short-term and long-term measures. Some
suggestions are as follows:
5. Laws relating to hazardous wastes and toxic substances must be
consolidated, codified in a single comprehensive code embracing
all spectra of it. Piecemeal legislation always results in inefficiency,
ineffectiveness of the law and multiplicity of authorities.
. To prepare a unified comprehensive code, it is suggested that a
National Committee should be established to review the whole
spectrum of hazardous wastes and toxic substances and to intro-
duce newer technologies and newer approach to the problem.
Lawyers, scientists and technocrats specialised in this field should
be the members of this National Committee.
. The new code should emphasise on resources recovery system and
resource conservation aspects of the problem.
The definition of the term “hazardous wastes” provided by the
Hazardous Wastes (Management and Handling) Rules, 1989 is
superfluous. It provides that it means categories of wastes specified
in the schedule. Without defining the term, the rules have provided
a schedule which can be revised or re-revised in due course of time.
It shows the state of uncertainty in the minds of the drafters of the
rules or that they were hesitant in defining it. Therefore, a proper
and potent definition should be provided.
. Domestic sewage and garbage have nowhere been dealt with. There
is no law which explicitly deals with them. Therefore, new unified
law should also deal with domestic sewage and garbage —their col-
lection, storage, treatment, disposal, etc.
The Central Government or the State Government with the help
of the Central Government should set up research laboratories so
as to develop newer and cheaper methods to treat the hazardous
wastes and toxic substances and provide the same to the industries
on subsidised rates as an incentive.
Research reports about the toxicity of a substance and the effect
of its waste on animate and inanimate objects should also be pub-
lished in leading newspapers so that the general masses may also
have knowledge of the danger they are facing or likely to face due
to the wastes and toxic substances.
Import of highly toxic substances and wastes dangerous to human
health and well-being should be altogether banned.
The use of Third World countries and oceans as dumping grounds
should completely be banned by appropriate international laws.
 ENVIRONMENTAL LAW [CHAP.

IO. A proper notice should be given to the local persons of an area

where an industry is intended to be installed. Such public notice
should include the description of the industry, a list of toxic sub-
stances or hazardous wastes it is going to produce and the likely
dangerous and damaging capacity of these toxic substances and
hazardous wastes.
After giving a proper notice and reasonable time to comprehend
the likely dangers they are going to face, the persons of the area
should also be asked whether the industry or the dumping site
should be permitted to operate in their area. Only after procuring
this public consent, licence/permit should be issued to an industry
or the dumping site should be permitted to operate.
1 EA To establish environmental courts on regional basis is the crying
need of the times. The court should have attached to it one profes-
sional judge and two experts drawn from the Ecological Science
Research Group (ESRG) keeping in view the nature of the case
and expertise required for its adjudication. Such ESRG should
consist of independent, professionally competent experts in differ-
ent branches of science and technology, who would also act as an
“information bank”.
I. The cases relating to hazardous wastes and toxic substances should
be decided by courts as early as possible and dealt with on prior-
ity basis. Such cases should be decided, say, within two or three
months. Early decision in the matter helps in curbing, curtailing
the pollution disseminating activity and in taking appropriate and
timely measures.
Eg. Requisition of 60 days notice to the government to bring a suit
under the Environment (Protection) Act should be done away with.
The citizens should be permitted to bring action against erring per-
sons/institution/industry— public or private—without undergoing
this requisition. Waiting period of 60 days sometimes frustrates the
purpose, helps erring industry to remove the evidence of culpability
and results in harassment of the public-spirited citizen. Further, it
is true that delay defeats justice.
14. The Environment (Protection) Act, 1986 has no provision for com-
pensation to victims. Therefore, appropriate legislation should be
passed making the industry or individual liable to pay compensa-
tion to the victims immediately within a definite time. The liability
to pay compensation should be based on the principle of absolute
liability.
“Public education programmes” relating to the management and
handling of hazardous wastes and toxic substances should com-
pulsorily be given to all students. General masses should be
taught
through adult education and mass media programmes.
7| LAW RELATING TO HAZARDOUS WASTES MANAGEMENT 233

16. Land use policies of the government should develop plans that
would provide incentives to industries that have a high pollution
potential to locate away from populated area and that would, in
turn, discourage people from moving close to plants and waste dis-
posal sites. Safe disposal must be made having due regard to the
nature of the substance.
17. New laws and regulations should also have provision to involve
local persons and voluntary non-governmental organisations in
major siting decisions and emergency preparedness planning.
Thus, an integrated comprehensive legal approach should aim at reduc-
ing the amount generated and transforming an increasing amount into
resources for use and reuse. This would reduce the volume of wastes
which must be treated, or disposed of through incineration, land dis-
posal or dumping at sea. Therefore, this titanic problem should be solved
on a “cradle to grave approach”. It should be contained and controlled
before it is proved environmentally disastrous for mankind.
 CHAPTER 8
Noise Pollution, Public
Health and Protection

Environmental pollution is a grave problem all over the world.

Industrialisation and urbanisation have led to an unprecedented growth
of environmental hazards. Environmental quality has declined signif-
icantly because of loss of vegetation cover and biological diversity. In
other words, we can say that there is a severe imbalance in the ecosystem.
Environmental pollutants mean the excessive presence of solid, gaseous,
liquid and noise in the atmosphere in such concentration as may be inju-
rious to living and non-living things. Noise is also considered to be a
pollutant and it has significant harmful effects not only on human beings
but also on animals, birds, plants and non-living things. Problems due
to noise are increasing day-by-day especially in the urban and industrial
areas. Highways, airports, industries and centres where construction
activities are carried on, are also considered high noise level areas.
Noise is not a recent problem. It has a long history. Two thousand five
hundred years ago, the ancient Greek colony of Sybar knew of measures
to check noise. They had rules to protect sleep and provide a quiet and
peaceful life to citizens. Loud sounds were prohibited by Julius Caesar
who also banned movements of noisy chariots at night. In China, noise
was a form of execution for those who insulted the heavenly powers.
Guilty persons were subjected to the sounds of flutes, drums and shouts
of persons continuously day and night until they died.
Noise is a type of atmospheric pollution in the form of waves. It is a
shadowy public enemy. It has increased in the modern age of industriali-
sation and technological advancement.'
The word noise is derived from the Latin term “nausea”. It may be
defined in law as “excessive, offensive, persistent or startling sound”.
Many industrial psychologists and environmentalists have defined the
1. K.P. Singh and S. Singha, Noise Pollution Impact and Control in Environmental
Management (1983).
236 ENVIRONMENTAL LAW [CHAP.

term noise. According to Blum, noise acts as a distracter and, therefore,

it interferes with the efficiency of people. J. Tiffin states that noise is a
sound which is disagreeable to the individual and which disturbs the
normal activities of an individual. Harrell defines noise as “an unwanted
sound which increases fatigue and under some industrial conditions it
causes deafness”.
The Encyclopaedia Britannica defines noise as “any undesired sound”.
According to this definition, “a sound of Church bells may be music to
some and noise to others. Usually noise is a mixture of many tones com-
bined in a non-musical manner.”* Encyclopaedia Americana states:
Noise, by definition is unwanted sound. What is pleasant to some ears may
be extremely unpleasant to others, depending on a number of psychological
factors. The sweetest music if it disturbs a person who is trying to concen-
trate or to sleep is noise to him just as the sound of a pneumatic riveting
hammer is noise to nearly everyone. In other words, any sound may be noise
if circumstances cause it to be disturbing.°
The American Jurisprudence analyses noise as an unwanted sound that
produces unwanted effects, a sound without value and sources are air-
craft and airports, vehicular traffic, railways and subways, industrial
activities, cooling, ventilating air-conditioning equipment.‘
The Wilson Committee of Britain on the problem of noise in its report
in 1963—Noise (Final Report) Command,. 2056—defined noise as
“sound which is undesired by the recipient”.
Noise pollution from the legal point of view may be defined as wrong-
ful contamination of the atmosphere to the material injury of the right of
an individual.’ Thus, noise, a pollutant, produces a contaminated envi-
ronment which becomes a nuisance and affects the health of a person,
his activities and mental abilities.
There are various English cases which go to prove that excessive noise
or noise with malice has always been recognised as actionable-noise nui-
sance. Almost 300 years before, the King’s Bench in Keeble v. Hickeringil®
declared that
no proprietor has an absolute right to create noise upon his land, because any
right which the law gives him is qualified by the condition that it must not
be exercised to the nuisance of his neighbours or of the public. If he violates
that condition, he commits a legal wrong, and if he does so intentionally he
is guilty of a malicious wrong, in its strict legal sense.

2. 16, Encyclopaedia Britannica (1968) 556. Quoted in Noise Pollut

ion (5), re, (2005) §
SCC 733: AIR 2005 SC 3136.
3. 20, Encyclopaedia Americana (2nd Edn. 1969) 400. Also
see, John Hancock, “Noise
Abatement at Municipal Level” (April 1973) 7 USFL Rev
483.
4. 15, American Jurisprudence (2nd Edn. 1972) 914.
Gn - “Pollution Control”, 61 Am J 817.

6. (1706) 11 East 574: 103 ER 1 127.

8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 237

This important pronouncement has been quoted with approval in

many cases.’ The courts, while declaring noise as actionable, have found
it “excessive and unreasonable”.
In another case’, the court observed that “of course the louder, in sci-
entific terms, a noise is, the more likely it is that legal action will have to
be taken, in one form or another, to shield the public against it or bring
about its cessation”.
E. Gross’ observed that noise is any unwanted disturbance within a
useful frequency band such as undesired electric wave in any transmis-
sion channel or device.
According to Environmental Health Criteria-12'°, “noise is consid-
ered as any unwanted sound that may adversely affect the health and
well-being of individuals or the population”.
In Byayanand Patra vy. Distt. Magistrate, Cuttack, it was observed
that “...noise pollution simply connotes unwanted sound in the atmos-
phere. It is unwanted because it lacks the agreeable amicable quality.
Noise is, therefore, sound but it is pollution when the effects of sound
become undesirable.”"!

1. NOISE AND SOUND

In considering our acoustic environment, we must differentiate between
these two terms, i.e. noise and sound. It is only when the effects of a
sound are undesirable, it may be termed as noise. Sometimes it has an
agreeable musical quality. It is pleasant to a group of people or individual
but unpleasant or undesirable for another individual or a group of people
or a sick person. Physically, sound is a mechanical disturbance propa-
gated as a wave motion in air and other elastic or mechanical media such
as water or steel. And physiologically, it is an auditory sensation evoked
by this physical phenomenon. It is necessary that all sound waves pro-
duce auditory sensation as described under.
The human ear is very sensitive to sound waves of the frequency of
20 Hertz (Hz) to 2000 Hz pitch, but not all sounds are detectable by the
human ear. There are two types of sound: 1) ultra sound, and 2) intra
sound.

7. Ibid; referred in Gaunt v. Fynney, (1872) 8 Ch App 8; Ibbottson v. Peat, (1865) 3

H&C 644: 159 ER 684; Hollywood Silver Fox Farm Ltd. v. Emmett, (1936) 2 KB
468; Smith v. Scott, 1973 Ch 314: (1972) 3 WLR 783.
8. R. v. Fenny Stratford Justices, ex p Watney, Mann (Midlands) Ltd., (1976) 1 WLR
rror: (1976) 2 All ER 888.
9. A. Peterson and E. Gross Jr, Hand Book of Noise Measurement (5th Edn. 1963) 210.
10. “Noise” published by UNEP and WHO, Geneva (1980) 20.
11. Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70, 72, per A.P.
Pasayat J, acting CJ.
 238 ENVIRONMENTAL LAW [CHAP.

1. Ultra Sound is that sound in which the frequency range exceeds

approximately 15 kHz. It is beyond the upper limit of normal hear-
ing, i.e. it has a frequency too high to excite the sensation of hearing.
2. Intra Sound is that sound in which sound is below a frequency of
about 16 Hz. It is below the lower limit of normal hearing. It is
commonly referred to as vibration.
According to Dr Vern O. Knudsen, “If the noise level we live with today
continues to increase at the same rate for the next 30 years as it has been
for last 30 years, it could become lethal.”!? The rate of increasing back-
ground noise is one decibel (dB) per year.
In India, Mumbai, Kolkata, Delhi, Chennai and Nagpur are the most
noisy cities. The Society for Clean Environment (SOCLEEN) and Nagpur
University submitted a study’ that the noise levels of these cities are
much higher than 45 dB prescribed by the World Health Organisation
(WHO). Acceptable noise levels are shown in Table tr.
TABLE 1 Acceptable noise levels

ssSe atin
0 TE ETON Re SER ODT EgOTT ne se sewage hi Pe”:
ee
stiles, cottinte rose aga ER OTC EP rene,
a ee ee Sth’ pioblest eAO
i ia be Ra 3 fail heirs. ton cae 5s Cee
Sg ain GT sheng ane baiamhinias ere
iar ohare Geuartoals acstacitampaRs eas
are 2e-laubecbaesmmane rah ableizeb
eae,eacsolans sed
yr alaaaa ali haa deem intigepelc aie
edit ee ae oe

Source: The Times ofIndia, 24-8-1986.

1.1 Measurement of noise

Noise is measured in decibels (dB). The word “decibel” is made of two
words— “deci” means 10 and “bel” is derived from the name of its inno-
vator—A. Graham Bell. In logarithmic scale, decibel is the standard unit
for measurement of sound.
The decibel scale is as follows:
1. The softest sound that can be heard by human ears is called dB
(zero decibel).
12. “Noise Takes Toll’, say Experts” October 1967 Today’s Health
.
13. “Kids May Become Deaf in ‘Noisy’ Nagpur” 14-12-1988 The
Hindustan Times,
New Delhi.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 239

2. Each ten-fold increase in sound intensity is represented by an addi-

tional rodB. Thus a rodB sound is 10 times as intense as the faint-
est audible sound (that’still is not very much).
The sound level in a quiet library is about 1000 times as intense as faint-
est audible sound. Therefore, sound level in the library is 10+10+10 or
30dB.

1.2 Sources of noise pollution

Sources of noise may be broadly classified into two classes: 1) industrial,
and 2) non-industrial.
1. Industrial sources.—The industrial sources may include noise from
various industries operating in cities like boiler, machinery, foundry,
flour-mill, cutting machines, etc. Noise is a by-product of energy conser-
vation and every industry produces noise. Pollution due to big machines
working at a high speed have high-noise intensity.'*
2. Non-industrial sources. —Non-industrial sources of noise can fur-
ther be divided into the following:
(a) Loudspeaker
) Automobiles or road traffic
) Trains
) Aircraft
) Construction work
) Projection of satellites in space
) Domestic noise from TV, radio, mixer machines, etc.
) Crowded bazaars
) Religious rituals and festivals
') Schools
) Social, religious and political gatherings including sports fields
) Lawn-mowers
) Sirens
) Domestic animals
) Office congregation
) Typing machines
) Generator sets
Noise problem may also be due to mining activities and the sufferers are
workers, community or those who dwell near it. Noise and vibrations are
caused by quarrying equipments, heavy earth-moving machines, drills
and blasting operations. The major categories of such noise on the basis
of sources are fixed plants, mobile plants and transportation vehicles.

14. “Noisy” 25-9-1983 Patriot.

 240 ENVIRONMENTAL LAW [CHAP.

1.3 Effects of noise

Noise and human civilization will always go together. Noise is one of the
main pollutants causing most hazardous consequences. In general, effect
on human beings is that it causes disturbance in communication and
sleep which leads to other side effects. It is slow death. Effects of noise,
its intensity and sources are shown in Table 2.
TABLE 2 Noise, its intensity and effects

Source Decibel (dB) Effects observed

= 0 Threshold of audibility s
peor Pe Te ee ae pane eteapeR ote

conedbagat
ain) gedgo
eig a|n
ETS eee

Daytime conversation iniving-room NE

dah iy AER
ed censure! |cone See
“Jet at1000 ft,subways, outboard motor, motorcycle (25ft)ofjack100-120 Serious hearing damage
ile a ee ei ate Iter
_Jettakeoff(200ft,steel mill lve rock music aircraft-arrer deck120-140 ———Eardrumrupture.
“Jet ae
takeoff(close
Srange),
= sirens
PIIIandloudhorms
IRE. o_O 150-180
CE f es) —-Eardrumruptu
oe rer‘ii as re ear
ras Fe aa oi end nes = See = <ree eee
ee ne aa ee De nd beh.
Waseca Se nes ‘110 a Piero.» 19)...
aca nn eeey apg
Tag fp z Be 30 “i ee OU? A.
Sn ey ST gv | OR IclORe eee tae
According to Prof. Gral, professor at Marburg University, more than
155 dB of sound may burn the skin and 198 dB may be cause of death.'5
Noise impairs the health of people in various ways: 1) psychologi-
cally, and 2) physiologically. Dr Samuel Rosen, a clinical professor of
Sociology of New York city, observed that an unexpected or unwanted
noise can cause the pupils to dilate, paling of the skin, dryness of mucous
membranes, initial spasms and adrenalin secretion. In other words, it
disturbs biological organisms and their functioning.

1.3.1 Psychological effects

The psychological and behavioural effects created by excessive
noise
include annoyance, fatigue, improper speech, psychosomatic
disorders,
tension-related diseases, sleep interference, mental illness and
emotional
illness. It is also medically confirmed that noise causes a
loss of nervous
15. Dr Raghuvanshi & Mrs Raghuvanshi, Paryavaran Tatha
Pradushan.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 241

energy.'® Noise reactions vary from individual to individual. It has been

observed that a large number of school children and teachers are going
deaf due to prolonged exposiire to intense noise.!” This is because schools
are situated in busy areas of a city. Dr Rao tested 900 school children
and 30 teachers of Nagpur city of India and she found that those from
noisy areas were educationally and emotionally maladjusted. They also
showed a remarkably lower ability to concentrate. Noise levels of these
areas were 60 to 80dB, and they were much higher than the permissible
limit decided by WHO (45 dB). Sudden noise also distracts a person and
can create nervousness, sometimes it may be the cause of death.

1.3.2 Physiological effects

Noise produces adverse physiological effects on human health. Its effects
are not known at once, but its effects are like a slow poison. The effects
are not only on human beings but on birds and animals too. Birds stop
laying eggs and breeding and animals stop mating in the season.!®
“Chronic noises can also be the cause of producing stomach ulcers
and reduce the flow of gastric juices and change their acidity, cause neu-
roses, allergies and cardiovascular and circulatory disease.”'’
Chronic noises may lead to abortions and other congenital defects in
unborn children.”°
Dr Nowell Jones?! observed during his analysis of more than 2,25,000
births in Los Angeles, that there were more birth defects among babies
whose mothers lived near the international airport than those who lived
in quieter sections. A similar study of the dwellers who were living near
Heathrow Airport, London also revealed the same results. Mr Y.T. Oke”?
concluded that frequent or continued exposure to noise above 85 dB, as
is in most large cities, can cause irreversible deafness, mental agitation,
violent behaviour, insomnia and increase the pulse rate, blood pressure
and cholesterol level. Lungs are also damaged due to high exposure of
sound which is about 165 dB.

16.S. Nigam, M.K. Shrivastava and G.N. Pandey, “Noise Pollution and Abatement
(1976)”, Chemical Era, Vol. 15, No. 4, 4-10. Also see, Bijayananda Patra v. District
Magistrate, Cuttack, AIR 2000 Ori 70, 74; Church of God (Full Gospel) in India v.
K.K.R. Magestic Colony Welfare Assn., (2000) 7 SCC 282: 2000 SCC (Cri) 1350.
17. Dr Laxmi Rao, “Noise Causes Deafness Among Children” 12-1-1989 The Times
of India.
18. Hollywood Silver Fox Farm Ltd. v. Emmett, (1936) 2 KB 468: 1936 All ER 825 (CA).
19. Bell, Noise: An Occupational Hazard and Public Nuisance (1966) 34. Also see,
Sayeed Maqsood Ali v. State of M.P., AIR 2001 MP 220.
20. D.K. Dixit, “Noise Pollution” September 1984 Mirror, 96.
21. Professor of Psychology, University of California, US.
22. A city physician in London.
 242 ENVIRONMENTAL LAW [CHAP.

A number of laboratory studies have pointed out that human efficiency

decreases with the increase of noise.”* Aggressive social behaviour Is also
the result of high-pitched noise. It causes loss of concentration which
sometimes results in accidents. The high intensity of sound affects not
only human health but also property, viz. causing cracks in buildings.
Courts have also realised the adverse effects of noise. The Supreme
Court has recently declared that
the problem of noise pollution has become more serious with the increas-
ing trend of industrialisation, urbanization and modernisation and is having
many evil effects including danger to health. It may cause interruption of
sleep, affect communication, loss of efficiency, hearing loss or deafness, high
blood pressure, depression, irritability, fatigue, gastrointestinal problems,
allergy, distraction, mental stress and annoyance etc. This also affects ani-
mals alike. The extent of damage depends upon the duration and the inten-
sity of the noise.*°
It has also been observed by health experts that “excessive noise can also
lead to neurosis and nervous breakdown”?®

1.4 Protection from noise pollution

Looking to the serious and disastrous effects of noise pollution on human
life, it is essential to take preventive and protective measures. The man-
agement of noise pollution may be as follows:
t. Non-legislative or general measures
2. Legislative measures

1.4.1 Non-legislative measures

1. Noise is an environmental problem of the present day. It can be
reduced and controlled at its source point by the regular repai’s
of machinery. Noise level can also be lowered if the noise source is
lubricated timely and adequately and other noise absorbing materi-
als are used. Noise may be reduced by keeping reasonable distance

23. A Study by Prof. Harish Ganguli of the efficiency of eight weavers in a

Jute Mill of
Kolkata under two conditions of noise, the normal and high noise of
roodB, the
reduction noise level of about 80 dB, reduction of noise level results were
positive.
24. The cracks in the city of the ROCOCO Church at Stem Hausan
were caused by some
booms.
25. Church of God (Full Gospel) in India v. K.K.R. Magestic
Colony Welfare Assn.,
(2000) 7 SCC 282, per Shah J; also see, Burrabazar Fire Works
Dealers Assn. v.
Commr. of Police, AIR 1998 Cal r21. “Apart from health,
apart from deafness it
affects the digestive system, cardiovascular disturbance in
cardiovascular system.”
26. Bijayananda Patra v. District Magistrate, Cuttack, AIR
2000 Ori 7o. The judgment
gives details of adverse effects of noise on adults and children.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 243

between source and listener. If noise is inevitable then workers

should be provided ear-defenders, ear-plugs to protect them from
hazardous effects. ,
2. Plants are efficient absorbers of noise, especially noise of high fre-
quency. Planting of trees like casuarina, banyan, tamarind and
neem along highways or streets help in abating noise in cities and
towns. Small trees should be planted towards the noise source
and taller towards the hearer. This conventional technique of con-
trolling noise will involve low cost too.
3. Noise insulating and noise absorbing roads and buildings should
be constructed.
4. Strict check on industries and mining operations for noise control
is essential while issuing of and renewal of licences.
5. Intervals between blasting of rocks and explosion should be 17
milliseconds or more.”’
6. Noise insulation scheme be introduced in and around interna-
tional airports and “noise insulation grants” be given to the nearby
dwellers.
7. Loudspeakers and amplifiers should be so manufactured that they
do not produce more than 80dB of noise.
8. There should be a complete ban on the use of loudspeakers during
10:00 p.m. tO 5:00 a.m.
9. Public awareness is a must for the betterment of the environmen t.28
ro. Railway tracks and highways should be away from residential
areas.

1.4.2 Legislative measures

Legislative prevention and protection is essential for the management
of noise pollution. Many countries have enacted specific legislations to
control noise pollution. In England, Section 2, Noise Abatement Act,
1960 provides that loudspeakers shall not be operated 1) between the
hours of nine in the evening and eight in the following morning for any
purpose; and 2) at any other time for purpose of advertising and enter-
tainment, trade or business. There are exceptions, of course, prescribed
in the Act.2? Section 62, English “Control of Pollution Act, 1974 also
operates as perfect control for ‘street noise’”.
America has passed the Noise Control Act, 1972 to control noise
pollution. It is an important legislation for regulating, controlling and

27. K.S. Valdiya, Environmental Geology (Indian Context) 164.

28. Also suggested in Burrabazar Fire Works Dealers Assn. v. Commr. of Police, AIR
1998 Cal 121.
29. David Huges, Environmental Law (1986).
 244 ENVIRONMENTAL LAW [CHAP.

abating of noise. Under this law, the Environmental Protection Agency

(EPA), acting through the office of noise abatement and control, holds
public meetings in selected cities to compile information on noise pollu-
tion. The Noise Control Act directs the EPA administrator to establish
levels of environmental noise (ambient noise levels), the attainment and
maintenance of which is essential to protect public health and welfare.
The various sections of the Act are directed at major sources of noise,
such as construction equipment, motor or rail engines, road and motor
carriers. The manufacturer of a product warrants to the ultimate pur-
chaser that the product conforms to its noise-emission standards at the
time of sale.2° Any person (US citizen) may commence a civil action to
enforce the noise emission standards.*! Wilful and knowing violation of
the standards may result in criminal penalties. The other main features
of the Act are 1) a control mechanism of consumer education; and 2) to
encourage to develop “low noise emission” products. The Act requires
that the Federal Government should purchase certified low noise emis-
sion products in preference to other products of its type so long as its
retail price is no more than 125 per cent of the least expensive product
for which it is a substitute.*? In some US States, environmental rights
have been embodied in their Constitutions.*
In Japan, there is widespread awareness about environmental man-
agement under the Anti-pollution Basic Law.*4 Even Israel has taken an
initiative by enacting legislation to control pollution activities.

1.5 Law of tort and noise

In India, the Environment (Protection) Act, 1986 and its rules and sched-
ules deal with noise pollution which have been discussed in the following
pages.
Under the “law of torts” no person has an absolute right to make noise
on his land to the detriment of another person’s comfort. Courts have
declared in unequivocal terms that the interference with the comfort of
a person should be “substantial”. It is not necessary to prove any injury
to health.
The Madhya Pradesh High Court in Dhannalal v. Thakur Chittarsingh
Mehtapsingh® laid down the law relating to noise in very clear terms as
follows:

30. S. 8, Noise Control Act, 1972 (US) 42 USCA 4907.

ch ee
a2. Si Teles).
33. Alan Wharan, “Environmental Law in USA” New Law Journ
al May 1975, 533.
34. The Basic Law, 1970 has dealt with noise pollution separ
ately and independently.
35. AIR 1959 MP 240.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 245

1. Constant noise, if abnormal or unusual, can be an actionable nui-

sance, if it interferes with one’s physical comfort.
2. The test of nuisance, personal discomfort is the actual local stand-
ard of comfort, and not an ideal or absolute standard.
3. General, unusual or abnormal noise on the defendant’s premises
which disturbs the sleep of the occupants of the plaintiff’s house
during the night, or which is so loud during the daytime that due to
it one cannot hear ordinary conversation in the plaintiff’s house, or
which cannot allow the occupants of the plaintiff’s house to carry
on their ordinary work, is deemed to be noise which interferes with
one’s physical comforts.
4. Even in a noisy locality, if there is substantial addition to the noise
by the introduction of some machine, instrument or performances
at defendant’s premises which materially affect the physical com-
forts of the occupants of the plaintiff’s house, then also the noise
will amount to actionable nuisance.
5. If the noise amounts to an actionable nuisance, the defence that
the defendant is making reasonable use of his own property will
be ineffectual. No use of one’s property is reasonable if it causes
substantial discomfort to other persons.
6. Ifthe defendant is found to be carrying on his business so as to cause
a nuisance to his neighbours, he is not acting reasonably as regards
them, even though he may be conducting his business in a proper
manner and according to the rules framed in that behalf either by
the municipality or by the government. The latter’s defence can be
effective in a case of public nuisance but not in a case of private
nuisance.
7. If an operation of the defendant’s premises, cannot by any care and
skill be prevented from causing a private nuisance to the neigh-
bours, it cannot be undertaken at all, except with the consent of
those injured by it.*°
The abovementioned principles were followed by the Allahabad High
Court in Radhey Shiam v. Gur Prasad Serma’’. It has held that abnor-
mal noise produced by the flour-mill which materially impairs the physi-
cal comforts of the occupants of the nearby house amounts to actionable
nuisance.
In G. Veerabhadrappa v. M. Nagamma*, the Karnataka High Court
observed that the sound and noise produced by the chilli pounding
machine, which disturbed the normal work, life and mental peace of
the plaintiff and nearby dwellers, was an actionable nuisance. Therefore,

36. Dhannalal v. Thakur Chittarsingh Mehtapsingh, AIR 1959 MP 240.

37. AIR 1978 All 86.
38. AIR 1988 Kar 217.
 246 ENVIRONMENTAL LAW |[CHAP.

the defendants must adopt scientific devices to prevent or minimise

nuisance.
In Mohd. v. Health Officer, the noise caused by the hammering
and cutting of metal sheets was not considered to be so substantial and
unreasonable as to permit an action in the case.
In Attorney General v. PYA Quarries Ltd.°, Denning LJ has aptly
summed up the principle relating to nuisance. It was held in this case that
a nuisance is a public nuisance which materially affects the reasonable
comfort and convenience of life of a class of subjects and the question
whether the number of persons affected is sufficient to constitute a class
is one of fact. In that case certain quarry-owners so conducted their oper-
ations that neighbouring householders were discomforted by the dust
emanating from the quarry in dry weather, which frequently resulted in
a film of dust being deposited in their homes and gardens. The vibrations
caused personal discomfort, but structural damage to houses from it was
not established. Before the issue of the writ, the quarry-owners had taken
steps which much reduced the causes of complaint, but did not entirely
remove them. Expert evidence showed that nuisance from vibration and
dust could be avoided by the exercise of proper care. In an action brought
by the Attorney General on behalf of the local authority, an injunction
was granted restraining the defendants—the quarry-owners—from car-
rying on the business of quarrying in such a manner as to cause a nui-
sance to the subjects of Her Majesty, by dust or by vibrations. On appeal,
it was held that injunction was rightly granted.
The Indian Supreme Court also declared noise as a nuisance and a
big health hazard, but dealt with it in the light of the provisions of the
Environment (Protection) Act, 1986 and its rules.*!

1.6 Noise control under the Penal Code, 1860

The IPC recognises noise as a public nuisance under Section 268. It
provides:
268. 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.

39. 1908 KL] 289.

40. (1957) 2 QB 169: (1957)2 WLR 770: (1957) 1 All ER 894 (CA).
41. Church of God (Full Gospel) in India v. K.K.R. Magestic
Colony Welfare Assn.
(2000) 7 SCC 282: 2000 SCC (Cri) 1350.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 247

Section 290” provides punishment for the public nuisance. Nuisance by

noise has so far been dealt with under Section 268 as none of the specific
provisions expressly bring it within their purview.
In Kirori Mal Bishambar Dayal v. State*’, a flour mill was set up on the
outskirts of the village in 1928, which was later on converted into a metal
factory. Within a period of 20 years, residential houses sprang up in the
vicinity of the factory. The residents complained of noise caused by the
factory interfering unreasonably with the comfort and enjoyment of their
private properties. The vibrations caused by the heavy machinery of the
factory were affecting the foundations of their buildings. Bhandari CJ,
enunciating the following principles of nuisance by noise, held:
1. Although a person is at liberty to carry on trade or business on the
property belonging to him, he has no right to do so if such trade
or business deprives another of the reasonable and comfortable use
of his property. Even a lawful trade would become a nuisance if it
interferes with the comfort and enjoyment of the neighbour.
2. The question whether a particular trade or business is or is not a
nuisance can be determined only after taking into consideration
a number of circumstances, such as the place where it is located
or carried on, the number of people whose rights are prejudicially
affected thereby and extent of the injury, discomfort and annoy-
ance caused to normal human beings.
3. A particular trade or business may be lawful to start with, but may
become a nuisance by reason of changed circumstances such as
growth of population. The mere fact that the factory was allowed
to operate for several years without any objection having been
raised by neighbours would not render the accused immune from
punishment, if it is found that its existence constitutes a nuisance
to the people of the neighbourhood. No prescriptive right can be
acquired to maintain and no length of time can legalise a public
nuisance.
On the basis of the above principles, the appellants were held liable for
creating public nuisance under Section 290 IPC.
In Ivour Heyden v. State of A.P.*, the petitioners (accused) were
convicted by the trial court for the offence of public nuisance under
Section 290 IPC. They were found guilty of playing a radio loud. The

42. S$. 290: “Whoever commits a public nuisance in any case not otherwise punishable by
this Code shall be punished with fine which may extend to two hundred rupees.”
43. AIR 1958 P&H 11.
44. 1984 Cri LJ NOC 16 (AP), S. 95 IPC provides, nothing is an offence by reason that
it causes, or that it is intended to cause, or that it is known to be likely to cause, any
harm, if that harm is so slight that no person of ordinary sense and temper would
complain of such harm.
 [CHAP.
248 ENVIRONMENTAL LAW

conviction
Andhra Pradesh High Court, in revision, quashed the order of
act
by holding that it was a too trivial act to be taken cognizance of. The
of playing a radio loud was considered to be excusable under Section 95
IPC. Section 95 provides that harm is excused which is not expected to
be complained of by a person of ordinary temper and sense.
The playing of the radio at reasonably moderate velocity is tolerable but not
at a high velocity which is certainly objected to by a man of ordinary pru-
dence. If the affected person is very busy with mental work, such noise is
ordinarily very offending to him. In common law countries the noise which
causes annoyance to public at large may be designated as a public nuisance.”

1.7. Noise control under the Criminal Procedure Code, 1973

The CrPC does not have any direct provision on noise pollution, but in
Chapter X, Section 133 prescribes for the abatement of nuisance in ordi-
nary cases and Chapter XI under Section 144 in urgent nuisance. Noise
pollution is also included in nuisance.
Under Section 133 CrPC, Magistrates have been empowered to make
conditional order requiring the person causing nuisance to remove such
nuisance.** In Emperor v. Ramcharan Abir*’, the Oudh High Court
decided that if noise was made by the night chowkidar of a house at
night, with the intention to scare away thieves and bad characters, it
would not amount to public nuisance to enable the Magistrate to take
action under Section 133 of the Code, and, similarly, a printing press in
a residential locality may also not amount to public nuisance if it was
not causing excessive noise interfering with the daily routine of nearby
dwellers. In Phiraya Mal v. Emperor**, a factory was working day and
night, thereby causing sufficient noise to annoy the inhabitants of the
locality. The court ordered the closure of the factory immediately under
Section 133 of the Code.
In Bijayananda Patra v. District Magistrate, Cuttack*, the Orissa
High Court declared that all District Magistrates and SDMs should be
empowered to issue prohibitory orders under Section 144 CrPC limiting
the hours of loudspeakers in religious places and for other social gather-
ings and functions.°*°

45. Corpus Juris Secundum, Vol. 66 (1950) 578.

46. George Mampilly v. State of Kerala, AIR 1985 Ker 24. The court observed that any
member of the public can maintain an action arising out of a breach of public duty or
violation of provisions of the Constitution or of the law and can ask for the enforce-
ment of it.
47. AIR 1926 Oudh 414: (1926) 27 Cri LJ 1020.
48. (1904) 1 Cri LJ 513 (Lah).
49. AIR 2000 Ori 70.
50. Ibid.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 249

1.8 Noise control under other statutes

1.8.1 Aircraft Act, 1934 .
The Central Government has powers to make rules under Section 5,
Aircraft Act, 1934 for manufacture, possession, use, operation, sale,
import or export of any aircraft and this may cover the regulation of air
transport services and the prohibition of the use of aircraft. But there is
no provision for the control of noise. In this Act it has been suggested
that aerodromes be constructed far away from residential areas of a city
in order to protect residents from noise created by frequent take-offs and
landings.
Under the Indian Aircraft (Public Health) Rules, 1946, the govern-
ment can make rules to control noise pollution. Under these rules there
is a statutory duty of the factories to provide adequate measures for the
control of noise.

1.8.2 Noise control under Railway Act, 1890

A huge amount of noise is emitted from railway engines and carriages.
There is no check to curb this noise pollution under the Railway Act,
1890. Railway engines have statutory protection and nobody, it appears,
can get any relief against railway engines, although they are major pollut-
ers. Section 16, Railway Act, 1890 (Act 9 of 1890) gives statutory author-
ity for the use of locomotives to Railway Administration. Section 16 says:
16. Right to use locomotives.—A railway administration may with the
previous sanction of the (Central Government) use upon a railway locomo-
tive engine or other motive power and rolling stock to be drawn or propelled
thereby.
In English common law, it would have been an actionable nuisance to use
engines which were a source of danger and it would have been no defence
that they have been made safe. It was decided in London and Brighton
Rly. Co. v. Truman! that the statutory protection, however, possessed
by railway companies in respect of various nuisances which are neces-
sarily incidental to the management of their business, for example, noise
and vibration are not a good defence.
In India, railway engines are at liberty to produce noise as much as
they can and there is no check upon them.

1.8.3 Motor Vehicles Act, 1988 and noise control

Motor vehicles are one of the main noise polluters and are most irri-
tating in modern era. The Motor Vehicles Act, 1988 under Section 110
empowers the Central Government to frame rules for the up-keeping of
51. (1885) 11 AC 45 (HL).
250 ENVIRONMENTAL LAW [CHAP.

Motor vehicles’ noise standards. But the rules made by States do not con-
tain any effective control measures to check noise pollution. The Bihar
19403
and Orissa Motor Vehicles Rules; the Delhi Motor Vehicles Act,
and the Rajasthan Motor Vehicles Rules, 1951 provide certain protection
from noise pollution.
Another regulation for controlling noise pollution by legislation is the
Bombay Police Act. A Police Inspector under the Act has been authorised
to allow or to ban the use of loudspeakers. Such discretion can be used
indiscriminately without any limits with regard to noise pollution. New
rules and regulations should be framed in the public interest to control
noise pollution.

1.8.4 Madhya Pradesh Control of Music and Noises Act, 1951

One of the earliest laws dealing exclusively with noise pollution is the
Madhya Pradesh Control of Music and Noises Act, 1951. It has defined
nocturnal noise as “noise during night as is likely to cause annoyance
or serious inconvenience to the public or to individuals”, but it has not
defined what type of noise can be prohibited. The District Magistrate
under Section 7 of the Act judges which noise can be prohibited and
which cannot be. No guiding principle has been provided. This also pro-
hibits loud music, use of loudspeakers or sound amplifiers by any person.
The Act further provides that loud music or noise is punishable with
imprisonment of either description for a period which may extend to one
month or with fine not exceeding #100 or with both.°*
Later on the M.P. Noise Control Act, 1985 was passed to contain
and control noise pollution. This Act was instrumental in taking action
against noise polluters till the Noise Pollution (Regulation and Control)
Rules, 2000 were notified by the Central Government. Recently, this Act
was made applicable in Sayeed Maqsood Ali v. State of M.P.*> In this case
the Madhya Pradesh High Court declared that the premises which are
near silence zones should not be let out to a person/association/organisa-
tion who have not obtained permission from competent authorities with
regard to the use of loudspeaker or other public address system. In this
case, there was a dharmshala near a hospital which was usually used for
marriage function. Noise during marriage function was quite disturbing.

1.8.5 Bihar Control of the Use and Play of

Loudspeakers Act, 1955
Section 3 of the Act prohibits the use and playing of loudspeakers
near hospitals, telephone exchanges, educational institutions and their

52. Se HO.
53. AIR 2001 MP 220.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 251

hostels. Section 6 provides that the cognizance of offence under the Act
can be on 1) a complaint made by, or at the instance of, the persons
aggrieved by such offence; er 2) upon a report in writing made by any
police officer.

1.8.6 Orissa Fireworks and Loudspeaker (Regulation) Act, 1958

The Act has been enacted with the aim of regulating the display of explo-
sive fireworks and use of loudspeakers. The Act prescribes the “restric-
tive zones” and “time period” for the use of loudspeakers and display
of fireworks within permissible limits. It further prescribes that one has
to seek prior permission for the use of a loudspeaker and for the dis-
play of fireworks within the restrictive zones. Any contravention of the
provisions invites penalty by way of imprisonment and fine. The Act
empowers the District Administration to enforce the provisions of the
Act. Study of the Act reveals that it lacks holistic approach and deals
with a part of noise pollution.

1.8.7 Rajasthan Noises Control Act, 1963°4

Rajasthan Noises Control Act, 1963 is an improved form of the Madhya
Pradesh Control of Music and Noises Act, 1951. The Act contains 10
sections. The Act has not defined what is loud noise or noise to be pro-
hibited and punishable. It can be inferred from Section 3 that any noise
whether vocally or by a loudspeaker, or by a sound amplifier, which is
likely to cause annoyance or serious inconvenience to the public is an
offence under the Act. Section 3 of the Act provides that the Magistrate
can declare a noise to be a nocturnal noise and can prohibit it by serving
a notice to the person causing it.
Section 4 restricts a person from using and playing loudspeakers near
hospitals; telephone exchanges; educational institutions; hostels main-
tained or controlled by the State, universities or local authority; and gov-
ernment offices. Permission for the use of broadcasting can be sought or
had from the prescribed authority in writing. Section 5 of the Act gives
wide powers to the District Magistrate, or any other officer empowered
by the State Government to prohibit noise. The District Magistrate can
proceed if he is satisfied that it is in the public interest to prohibit noise
of any kind whatsoever, in any place and at any time.
Section 6 provides that on the first conviction, a person shall be pun-
ished with a fine which may extend to 250. And on the subsequent

54. The Rajasthan Noises Control Act, 1963 received assent of the Governor on the
29-4-1963. It replaced the Ajmer (Sound Amplifier Control) Act, 1952, Ajmer Act 3
of 1952 and other corresponding laws in force in any part of the State.
252 ENVIRONMENTAL LAW [CHAP.

conviction punishment can either be imprisonment which may extend

to one month or fine extending up to 250 or both. Such an offence is
triable by a first class Magistrate and shall be cognizable. Arrest can
also be made by a police officer not below the rank of Sub-Inspector ifa
cognizable offence has been committed. 7
Section 9 empowers the State Government to makes rules for carrying
out the purposes of this Act. Such rules shall be laid before the State
Legislative Assembly.

1.8.8 Bengal Motor Vehicles Rules, 1940

In the history of noise pollution, Rabin Mukherjeev. State of W.B.”
is one of the important pronouncements in the direction of minimising
“noise pollution” in the interest of the public at large. This case origi-
nated in the form of a writ petition before the High Court praying for
protection of the rights of citizens from nuisance and noise pollution
created with impunity by transport operators by indiscriminate installa-
tion and use of electric and artificially generated air horns which cause
unduly harsh, shrill, loud and alarming noise. The petitioners prayed
for the issuance of writ of mandamus commanding the respondents to
enforce the provisions of Rule 114 of the Bengal Motor Vehicles Rules,
1940 to put restrictions on such horns. It was pleaded that excessive
noise poses serious threat to the health of residents apart from caus-
ing serious inconvenience to the weak, infirm and indisposed people.
The residents of Calcutta Metropolitan Area and of other urban areas
were the worst sufferers. It was alleged that sudden blowing of such
horns by transport vehicles produced rude shocks in the human system
on various aspects of human life including blood pressure, mental and
nervous system.
Rule 114 of the W.B. Motor Vehicles Rules, 1940 provides:
114. Horns.—(a) Every motor vehicle shall be fitted with a horn or other
approved device available for immediate use by the driver of the vehicle and
capable of giving audible and sufficient warning of the approach or position
of the vehicle.
(6) No motor vehicle shall be fitted with any multi-toned horn giving
a succession of different notes or with any other sound-producing
device giving unduly harsh, shrill, loud or alarming noise.
(c) * x
(d) Every transport shall be fitted with a bulb horn.
Research reports of various institutions about the noise pollution in
the city of Calcutta declared that the atmosphere and environment was
very much polluted from indiscriminate noise emitted from vehicles.

55. AIR 1985 Cal 222.

8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 253

Noise from airplanes were also adding to this pollution. The research
also revealed that excessive noise has resulted in various types of dis-
eases—loss of appetite, depression and insomnia.
The court declared that Rule 114 is a mandatory provision and vehi-
cles are using electric and air horns in a reckless manner in utter disre-
gard of this provision. Even authorities were not taking any action for the
violation of this mandatory provision. Section 112, Motor Vehicles Act,
1939 provided punishment for the violation of rules made thereunder.
The court observed that the “respondents are under a statutory obli-
gation and duty under Section 10 of the Motor Vehicles Act to punish
the persons who contravene provisions of Rule 114(d) of the said rules.
But, unfortunately, no positive steps had yet been taken in the matter”.
Therefore, Rule 114(d) must be enforced strictly against the use of elec-
tric and air horns. The court also directed the government to notify all
transporters the contents of Rule 114 and remove electric, air and other
loud and shrill horns forthwith, and only to use bulb horns. If it was
not done in 15 days, penal action would be taken against them. The
government was asked to give wide publicity to this judgment through
mass-media, radio, TV and newspapers; it has also to notify such restric-
tion regarding the use of such horns by transporters coming from other
States to the State of West Bengal.
Thus, it was a major step towards the containing and minimising of
noise pollution in a metropolis of India.

1.8.9 Uttar Pradesh Nagar Mahapalika (Prohibition of

Noise and Regulation of Loudspeakers) Rules, 1987
The State of Uttar Pradesh, in the exercise of the powers under
Section 420(r), (2)(xi) of the Uttar Pradesh Mahapalika Adhiniyam,
1959, passed the Uttar Pradesh Nagar Mahapalika (Prohibition of Noise
and Regulation of Loudspeakers) Rules, 1987 with an aim to prohibit
and regulate the use of loudspeakers which are a major source of noise.
It consists of 23 rules.
It provides that no person shall, without the written permission of the
Mukhya Nagar Adhikari or any other person authorised by him, use
loudspeakers—whether stationary or mobile. Permission can be sought
by submitting an application and paying the required fee. So permitted
loudspeakers can be used from 8:00 a.m. to 10:00 p.m. during winters
and 7:00 a.m. to 11:00 p.m. during summers. Permission of the District
Magistrate shall be necessary for using loudspeakers beyond the pre-
scribed time.
Traders neither can sell, use or let on hire loudspeakers within the
limits of the Nagar Mahapalika without prior permission of the licensing
 254. ENVIRONMENTAL LAW [CHAP.

officer. The licensing officer shall issue a “metal plate” indicating licence
number, period, chassis number of the loudspeaker and number of horn
units to the trader. The trader is required to fix governors to keep the
sound at the lowest pitch and cannot cause nuisance. | Te
But no permission for the use of loudspeakers shall be given within
a radius of 100 metres from the premises of a hospital, a court, library,
government office, quasi-government office, hostel, school, college and
university.
Any loudspeaker which is found to be used in contravention of the
rules shall be seized by the licensing authority or employees of the Nagar
Mahapalika. Further, whoever keeps, lets or uses any loudspeaker in
contravention of the rules, shall be punished with fine which may extend
to #500, and if the breach continues, it may extend to ¥20 for every day
during which the breach continues after conviction. The offence under
the rules is compoundable.
A survey of the rules of 1987 reveals that it is not an effective law as
the punishment provisions provided are very meagre—punishment by
way of fine only.

1.8.10 Environment (Protection) Act, 1986 and noise

The Indian Parliament enacted the Environment (Protection) Act, 1986
to prevent, control and abate environmental pollution which came into
force on 19 November 1986, the birth anniversary of the late Prime
Minister, Mrs Indira Gandhi. Section 2 of the Act has defined various
terms including “environment”, “environmental pollutants” and “envi-
ronmental pollution” comprehensively, but it does not specifically refer
to noise. Only Section 6(2)(b) mentions the word noise and provides that
the government may make rules for allowable limits of environmental
pollutants including noise for different areas. Rule 5 of the Environment
(Protection) Rules, 1986 under clause (1)(ii) empowers the Central
Government to make rules regarding “the maximum allowable limits of
various environmental pollutants (including noise) for an area”. Thus, in
the exercise of Sections 3, 6 and 25 read with Rule 5 of the Environment
(Protection) Rules, 1986, the Central Government has recently notified
Noise Pollution (Regulation and Control) Rules, 2000 on 19 February
2000 for preventing adverse impact on human health, including harmful
psychological effects.
Noise Pollution (Regulation and Control) Rules, 2000
have been
noticed to regulate the level of noise pollution in urban areas
, including
metropolitan cities, from various sources. This also includes
ban on use
of loudspeakers without written permission and also gene
rator sets. The
rules notified by the Central Government are discussed
below.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 255

1.8.11 Noise Pollution (Regulation and Control) Rules, 2000°°

The Noise Pollution (Regulation and Control) Rules, 2000 framed
by the Central Government under the provisions of the Environment
(Protection) Act, 1986 read with Rule 5 of the Environment (Protection)
Rules, 1986 and Rule 3 of the Noise Pollution (Regulation and Control)
Rules, 2000 provides for ambient air quality standards in respect of
noise for different areas/zones as specified in the schedule annexed to the
rule which is as under:

SCHEDULE

TABLE 3 Ambient air quality standards in respect of noise

Area code Category of area/zone Limits in dB(A) Leq*

Daytime Night-time
Industrial
. chegeaages z area 75 70
aoe a -3820-4.64.-5-OGs-43 ~ At- OHOA- SERBIA S gasses.
7 Si Sap ecb 109 2BIIOIQUS. 2: ia 01 SUB W tt! seLiet ti ees
es BE MAUL) eam Le alee AhesRe. 5S rh
GRA TRE be ier See.

Note:
(a) Daytime shall mean from 6:00 a.m. to 10:00 p.m.
(b) Night-time shall mean from 10:00 p.m. to 6:00 a.m.
(c) Silence zone is defined as an area comprising not less than 100 metres around hospitals, educational
institutions, religious places and courts. The silence zones are zones which are declared as such by the
competent authority.
(d) Mixed categories of areas may be declared as one of the four abovementioned categories by the competent
authority.
* dB(A) Leq denotes the time weighted average of the level of sound in decibels on Scale A which is relatable to human
hearing.
A “decibel” is unit in which noise is measured.
“A” in dB(A) Leg, denotes the frequency weighting in the measurement of noise and corresponds to
frequency response characteristics of the human ear.
Leq; It is an energy mean of the noise level over a specified period.

It is for the State Government to categorise the area into industrial, com-
mercial, residential or silence zone and to take measures for abatement of
noise including noise emanating from vehicular movements.
Clause 4 provides that all development authorities, local bodies and
other authorities concerned while planning developmental activity or
carrying out functions relating to town and country planning shall take
into consideration all aspects of noise pollution as a parameter of quality
of life to avoid noise menace and to achieve the objective of maintaining
the ambient air quality standards in respect of noise.

56. It came into force on 14-2-2000.

 [CHAP.
256 ENVIRONMENTAL LAW

control meas-
4. Responsibility as to enforcement of noise pollution
the ambient air
ures. —(1) The noise levels in any area/zone shall not exceed
quality standards in respect of noise as specified in the Schedule.
of noise pol-
(2) The authority shall be responsible for the enforcement
quality
lution control measures and due compliance with the ambient air
standards in respect of noise. .
(3) The respective State Pollution Control Boards or Pollution Control
Committees in consultation with the Central Pollution Control Board shall
collect, compile and publish technical and statistical data relating to noise
pollution and measures devised for its effective prevention, control and
abatement.
5. Restrictions on the use of loudspeakers/public address systems and
sound producing instruments.—(1) A loudspeaker or a public address sys-
tem shall not be used except after obtaining written permission from the
authority.
(2) A loudspeaker or a public address system or any sound producing
instrument or a musical instrument or a sound amplifier shall not be used at
night (between 10:00 p.m. to 6:00 a.m.) except in closed premises for com-
munication within, for example, auditoria, conference rooms, community
halls, banquet halls or during a public emergency.
But the State Government may, subject to such terms and conditions as
are necessary to reduce noise pollution, permit use of loudspeakers or
public address systems during night hours (between 10:00 p.m. to 12:00
midnight) on or during cultural or religious festive occasions of a limited
duration not exceeding 15 days in all during a calendar year.°’
The power delegated to the State Government to relax this restriction
was examined by the Supreme Court of India in Noise Pollution (7), re
v. Union of India**. Upholding the constitutional validity of such relaxa-
tion, the court declared that “looking at the diversity of cultures and reli-
gions in India, we think a limited power of exemption from the operation
of the noise rules granted by the Central Government are reasonable”.
But the court cautioned that 1) the State Government cannot further
delegate this power; and 2) it would exercise them with due care and
caution and in the public interest. Further, the State Government should
specifically declare such relaxation in advance.
In Farhd Wadia v. Union of India*’, the court made it clear that it is
only State Government who can give relaxation of two hours for noise
during night and their power cannot be delegated further to district
authorities. Further relaxation would be violative of Articles 14 and 21
of the Indian Constitution. The necessity of silence and peaceful sleep at
night is “one of the human rights as noise is injurious to human health
which is required to be preserved at every cost”.

57. Ins. by Noti. No. $.O. 1088(E), Gaz. of India dt. 11-10-2002.
58. (2005) 8 SCC 796: AIR 2006 SC 348.
59. Farhd K. Wadia v. Union of India, (2009) 2 SCC 442.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 257

6. Consequences of any violation in silence zone/area.— Whoever, in

any place covered under the silence zone/area commits any of the following
offence, he shall be liable forpenalty under the provisions of the Act:—
() whoever, plays any music or uses any sound amplifiers,
(11) whoever, beats a drum or tom-tom or blows a horn either musical or
pressure or trumpet or beats or sounds any instrument”, or
(iii) whoever, exhibits any mimetic, musical or other performances of a
nature to attract crowds.
(tv) whoever, bursts sound emitting fire crackers; or
(v) whoever, uses a loudspeaker or a public address system.
7. Complaints to be made to the authority.—(1) A person may, if the noise
level exceeds the ambient noise standards by rodB(A) or more given in the
corresponding columns against any area/zone, or, if there is a violation of
any provision of these rules regarding restrictions imposed during night time
make a complaint to the authority.
(2) The authority shall act on the complaint and take action against the
violator in accordance with the provisions of these rules and any other law
in force.
8. Power to prohibit, etc. continuance of music, sound or noise.—(t) If
the authority is satisfied from the report of an officer in charge of a police
station or other information received by him including from the complainant
that it is necessary to do so in order to prevent annoyance, disturbance, dis-
comfort or injury or risk of annoyance, disturbance, discomfort or injury to
the public or to any person who dwell or occupy property on the vicinity, he
may, by a written order issue such directions as he may consider necessary to
any person for preventing, prohibiting, controlling or regulating:—
(a) the incidence or continuance in or upon any premises of—
(2) any vocal or instrumental music,
(iz) sounds caused by playing, beating, clashing, blowing or use in
any manner whatsoever of any instrument including loudspeak-
ers, public address systems, horn, construction equipment, appli-
ance or apparatus or contrivance which is capable of producing or
reproducing sound, or
(ii) sound caused by bursting of sound emitting fire crackers, or
(b) the carrying on in or upon, any premises of any trade, avocation or
operation or process resulting in or attended with noise.
(2) The authority empowered under sub-rule (1) may, either on its own
motion, or on the application of any person aggrieved by an order made
under sub-rule (1), either rescind, modify or alter any such order:
Provided that before any such application is disposed of, the said author-
ity shall afford to the applicant and to the original complainant as the case
may be, an opportunity of appearing before it, either in person or by a person
representing him and showing cause against the order and shall, if it rejects
any such application either wholly or in part, record its reasons for such
rejection.

60. Quoted in Savla & Associates v. NCT of Delhi, AIR 2003 Del 73; also see, Sk. Ikram
Sheikh Israil v. State of Maharashtra, (2007) 4 SCC 217.
258 ENVIRONMENTAL LAW [CHAP.

SCHEDULE VI— PART E OF THE ENVIRONMENT

(PROTECTION) RULES, 1986

TABLE 4 Noise limits for automobiles

Motorcycles, sopotersand IEE MOPS, laanoe a0.xasad.a0.39@e POMP). snis22098...

Passenger cain crap o5¢ 20 “ioe Shims yabysemtinn ghBias 2B Pavdsorion, (ular:
Passenger orcommerc uptoMT
vecesial i: EMOTE
Passenger orcommerca vies above4MTanduptoT2MT Da ewsodenukelwt
Passenger orcommercial vehicles exceeding 12 MT 91 dB(A)
TABLE 5 Ambient air quality standards in respect of noise with regard to domestic appliances

Domestic appliances Limits in dB(A) sound pressure level at one metre

distance from the operating appliance

See
ee ee ne tO) os caolaheacyule
disiernbee awhetee lek Sealed
_Megaales(berwesn_
ey ee 10:00 pf. to 6:00.a.m,)
Se except in.chzsee
Recently, the Supreme Court gave directions to an amicus curiae to give
suggestions to implement the noise standards with regard to firecrack-
ers.°' In response to the court’s earlier order issued in 1998, inability
had been shown about implementing noise standards prescribed under
the rules of 2000 because of lack of manpower as well as equipment
and infrastructure for enforcing the noise control standards. The Central |
Pollution Control Board (CPCB) suggested that power to issue licences |
for manufacture and sale of firecrackers should be withdrawn from dis- |
trict authorities and should be vested in the State Government.

1.9 Fire crackers, festivals and noise pollution

In most of the countries, including advanced countries, there is a move |
for college celebration of festivals and belief in show of fireworks to
express their feelings. In India, there are various festivals (like Dipawali,
marriage celebrations, important day celebrations, religions festival, etc.)
when the persons express their feeling of happiness by bursting fire-
works in private and in public. Mainly firework is intimately associated
with the Diwali poojan. Diwali is considered as a festival of lights but
now it has become a festival of bursting crackers. This festival is closely
associated with the right to religion provided under Article 25 of the
Indian Constitution. But the Supreme Court has made it clear that right
to religion is not absolute and reasonable restrictions can be put
on them.
61. Noise Pollution, re (Implementation of Laws for restri
cting use of Loudspeakers
and High Volume producing Sound Systems), WP (C) No. 72 of 1998, order dt.
7-4-2003 (SC).
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 259

Similarly, bursting of fireworks on Diwali and on other festive occasions

can be regulated and controlled. Such regulations are intra vires and are
not violative of Article 25.° The use of fireworks had led to air pollution
in form of noise and smoke. Their excessive use has proved to be pub-
lic hazard and violation of the fundamental rights as enshrined in the
Indian Constitution.
The Environment (Protection) Rules, 1986 at Item No. 89° has pre-
scribed the noise standards for fire-crackers which are given below.
Item 89.—As shown above, maximum limit of fire-crackers gener-
ating noise is 125 dB(AI) or 145 dB(C)pk at 4 meters distance from the
point of bursting. If a person or industry wants to manufacture new
variety of firework, one must apply for permission to Chief Controller of
Explosives along with detailed drawing and necessary fees.
Noise from fire-crackers can be measured on the basis of 1) noise levels,
and 2) their chemical composition. The abovementioned Act has adopted
the first system to know the noise from fire-crackers. But the Supreme
Court has suggested that method of fixing chemical composition for each
and every fire-crackers, keeping in mind the limits of 125 dB(A) as max-
imum permissible limit,°* should be adopted. The explosive department
while granting licence for manufacturing particular fire-crackers specify
ratio as well as the maximum permissible weight of every chemical used
for the purpose. Every manufacturer should mention details of chemical
compositions on each box of crackers.

1.10 Rules for crackers manufactured for export

Looking at trade having been globalised, abovementioned restrictions
can be modified but with the prior approval of the department of explo-
sive, if the fire-crackers are manufactured for export to other countries.
But such exemption should be in accordance with the legal restrictions of
that country. Thus, fire-crackers may bear higher noise levels, but they
should bear different colour packing from those intended to be sold in
India. Such boxes must also bear clear print on them stating that they are
not to be sold in India.
docs indian Supreme Court made a very significant pronouncement in
6isé Polution (5), ve’ and comprehensively dealt with the law relating
to noiseesioullaciion of India and of abroad. The case mainly deals with CASE PILO

the law for restricting noise from loudspeakers and fire-crackers. The

62. Noise Pollution (5), re, (2005) 5 SCC 733: AIR 2005 SC 3136.
63. Incorporated by GSR 682(e), dt. 5-10-1999 w.e.f. 10-1-1999.
64. Ibid, 159-1160. In this case the court has also attempted to define the term noise,
mentioned the source and adverse effects of noise pollution and present legal position
in other countries (US, UK, Australia, Canada, Japan).
65. (2005) 5 SCC 733: AIR 2005 SC 3136.
 260 ENVIRONMENTAL LAW [CHAP.

court made it clear that “nobody can be compelled to listen and nobody
can claim that he has a right to make his voice trespass into the ears or
mind of others. Nobody can indulge into aural aggression”. Such acts
amount to violation of the right of others to peaceful, comfortable and
pollution free life guaranteed by Article 21. The limits fixed by Item 89
of Schedule I to the Environment (Protection) Act, 1986°° for noise from
fire-crackers were held good and that they must be followed and imple-
mented properly by the concerned authorities. But the court made it
clear that the maximum limit of 125 dB(A1r) must be adhered to and
that every manufacturer should mention the details of its chemical con-
tents on each box. In case of failure, the manufacturer shall be liable for
criminal prosecution. The Department of Explosive was also directed to
undertake necessary research to come out with the chemical formula for
such fire-crackers. The department, while granting licence, shall specify
the ratio as well as the maximum permissible weight of every chemical
used for preparing fire-crackers. Such permissible limits and standards
may be higher/lower for the fire-crackers to be exported as per standards
prescribed by the importing country. The court suggested that general
awareness must be created amongst masses, particularly amongst chil-
dren, about the hazardous effects of noise pollution.
The Gujarat High Court in Hetalben Jitendrakumar Vyas v. Sabarmati
Police Station®’ quoted the directives issued by the Supreme Court in the
above case and directed that the rules framed for noise pollution must
be given due publicity. Restrictions for banning of fire-crackers on public
street during marriage, processions, religious and social meetings and
Noise Rules, 2000 must be brought to the knowledge of public and the
restriction must be strictly followed.

1.11 Judicial activism and noise

It was the need of the time to have detailed rules regarding noise pollu-
tion. Recently the Orissa High Court in Bijayananda Patra v. District
Magistrate, Cuttack® observed that since “the problem of noise pollu-
tion has already crossed the danger point and ‘noise like a smog is threat-
ening as a slow agent of death’ some immediate measures are required
to be taken”. The court suggested that to deal with this menacing noise
pollution separate courts to deal with cases of noise pollution be estab-
lished, and the Central Government and State Governments should come

66. Noise level fixed from crackers is 125 dB(Ar) or 145 dB(c) at 4 meters
distance from
the point of bursting.
67. AIR 2006 Guj 97.
68. AIR 2000 Ori 70. In this case the petitioner prayed for a writ
to prevent noise pollu-
tion from the use of loudspeakers and fireworks and consequent
ial health hazard in
the State of Orissa.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 261

out with adequate legislative measures to prevent this fast-growing men-

ace, and “permanent monitoring bodies” should be appointed to make
periodic review of the situation and suggest remedial measures. This
decision was pronounced before the notification of the Noise Pollution
Rules, 2000.%
After the notification of the above Noise Pollution (Regulation and
Control) Rules, 2000, the Supreme Court made a very significant deci-
sion referring to these rules. In Church of God (Full Gospel) in India
v. K.K.R. Magestic Colony Welfare Assn.” (Church of God), the ques-
tion before the court was: Whether the right to practice any religion,
profess and propagate it in the form of use of loudspeakers and other
instruments authorises a person/institution to violate the rules framed
under the Environment (Protection) Act, 1986 regarding the noise pol-
lution level (permissible limits)? The court answered in the negative and
observed:
undisputedly no religion prescribed that prayer should be performed by dis-
turbing the peace of other 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 daytime or other per-
sons carrying on other activities cannot be permitted.... Aged, sick, people
afflicted with psychic disturbances as well as children up to 6 years of age
are considered very sensitive to noise. Their rights are also required to be
honoured.
The court denied the right of the Church of God to use amplifiers and
other noise-making devices for prayers and observed that the Noise
Pollution (Regulation and Control) Rules, 2000 are required to be
enforced, “though they are unambiguous, there is lack of awareness
among citizens as well as the Implementation Authority about the Rules.
It is high time that they should be implemented effectively”.
The court also referred to Acharya Maharajshri Narendra Prasadji v.
State of Gujarat’! (Narendra Prasadji), decided long back in 1974, which
also decided that the right to religion under Articles 25 and 26 cannot
be absolute and must be consistent with the enjoyment of rights also by
others.”*
In M.C. Mehta v. Union of India”, the Supreme Court found that
mining operations in Badkhal lake and Surajkund area were causing air

69. The case was decided on 17-9-1999 and the rules were notified on 19-2-2000.
70. (2000) 7 SCC 282: 2000 SCC (Cri) 1350. Followed in Savla & Associates v. NCT of
Delhi, AIR 2003 Del 73.
71. (1975) x SCC 11: AIR 1974 SC 2098.
72. The court also approved the decision in M.S. Appa Rao v. Govt. of T.N., (1995) 1 LW
319 (Mad) pronounced by the Madras High Court.
73. (1996) 8 SCC 462: AIR 1996 SC 1977.
262 ENVIRONMENTAL LAW [CHAP.

pollution and noise pollution (as per report of NEERI). Therefore, the
court ordered for stoppage of mining operations within a two kilometres
radius of the tourist resorts of Badkhal and Surajkund and to develop a
200 metre green belt all around the boundaries of the two lakes. Thus, it
was a measure, as envisaged by Section 3, Environment (Protection) Act,
1986, to maintain the quality of the environment and to control, prevent
and abate environmental noise pollution.
In Shobana Ramasubramanyam vy. Chennai Metropolitan
Development Authority”, the Tamil Nadu High Court declared that the
noise produced by the use of heavy machinery and heavy iron weight was
more than 86 dB and in excess of any standard and was thus disturbing
the peace of the neighbourhood. Therefore, the court ordered for the
closure of the works immediately. Moreover, the court declared environ-
ment rights as “third generation rights”.
In Hetalben Jitendrakumar Vyas v. Sabarmati Police Station”,
the boy aged about two-and-a-half years lost his one of the eye when
fire-crackers were burst by the marriage party. The court declared that
there are sufficient legal provisions regulating manufacturing and burst-
ing of fire-crackers, but they need to be implemented by the machinery
effectively. The restriction with regard to bursting of firecrackers on pub-
lic streets must be imposed in the entire State and due publicity to such
restrictions must be given. Fifteen thousand rupees were awarded by way
of relief but it was open for the aggrieved persons to claim damages from
the respondents by taking appropriate legal recourse.

1.12 The Indian Constitution and noise pollution control

The Indian Constitution of 1950 did not have any provisions directly
dealing with environmental pollution. But the 42nd Amendment of the
Constitution passed in 1976 inserted Article 48-A and Article 51-A to
protect and improve the environment as has been discussed in Chapter II.
Thus, India became one of the few countries of the world which
enshrined in its Constitution, a commitment to environmental protection
and improvement. It has interjected a new dimension to public responsi-
bility by obligating the Central Government to protect and improve the
environment for the good of society as a whole.” So the Constitution
makes a dual provision by way of directives to the State for the protec-
tion and improvement of the environment and imposing a duty on every
citizen to help in the preservation of the natural environment.

74. AIR 2002 Mad 125.

75. AIR 2006 Guj 97.
76. O.P. Dwivedi and B. Kishore in Shekhar Singh, Environmental Policy
on India
(1984) 49.
8| NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 263

In State of Rajasthan v. G. Chawla’’, a unique question came up before

the Supreme Court whether the State Legislature has the right to prevent
and control loud noise and make it punishable? Do such restrictions or
State enactments amount to violation of the freedom of speech for pre-
vention and control of noises? The Supreme Court was of the opinion
that this freedom is not absolute. It is subject to the restrictions pro-
vided under Article 19(2). This clause (2) of Article 19 provides certain
reasonable restrictions which can be put on the freedom of speech and
expression. Thus, if any law, pre-constitutional or post-constitutional,
imposes reasonable restrictions in the interest of public order, it is con-
stitutional. In this case, the Ajmer (Sound Amplifier Control) Act, 1952
was challenged as violative of the freedom of speech and expression and
that the State Government had no power under the Constitution to enact
such laws.
The Supreme Court declared that the said Act is not unconstitutional
as it is a reasonable restriction in the interest of public order and the State
is also empowered to enact such laws. To make things more clear it was
observed by the court that the State can make laws in the exercise of its
power under Entry 8, “Public Health and Sanitation of List II provided
under Seventh Schedule”. Thus, the States “have the right to control loud
noises when the rights of such user, in disregard to the comfort and obli-
gations to others, emerges as manifest nuisance to them”. Thus, laws to
control loud noises and music enacted by various States’* are within the
permissible limits of the Constitution and are a reasonable restriction
on the freedom of speech and expression. The court made it clear that
persons are free to make noise but not to transgress the right of others
to live peacefully. As soon as the noise becomes a nuisance, interferes
in the use or enjoyment of property or annoys others, the laws impos-
ing restriction will come into operation and the constitutional freedom
will also come to an end. Such noise may also become a health hazard
activity. Such activity is also violative of the constitutional duty imposed
on every citizen of India under Article 51-A to protect and improve the
natural environment.

1.13 Right to religion and noise pollution

It has been observed by the courts on various occasions that right to reli-
gion under Articles 25 and 26 is not an absolute right and it is subject to
reasonable restrictions.”? Even the Ramleela and Akhanda Path cannot

77. AIR 1959 SC 544.

78. The M.P. Control of Music and Noises Act, 1951; the Rajasthan Noises Control Act,
1963; the Bihar Control of the Use and Play of Loudspeakers Act, 1955, etc.
79. Acharya Maharajshri Narendra Prasadji v. State of Gujarat, (1975) 1 SCC 11: AIR
1974 SC 2098; Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Ori 70;
 264 ENVIRONMENTAL LAW [CHAP.

be allowed to disseminate excessive noise which coerces a man to listen

to unwanted/undesired/unagreeable noise. Since the right to profess and
propagate any religion under Article 25 also relates to health, the noise
caused by loudspeakers can be checked in the interest of health. It can be
restrained by injunction.
A landmark pronouncement has recently been made by the Supreme
Court in Church of God*®. The question for consideration before the
court was, “...in a country having multiple religions and numerous
communities or sects, whether a particular community or sect of that
community can claim right to add to noise pollution on the ground of
religion?” In this case, in the hall of the Church (appellant) the prayers
were recited by using loudspeakers, drums and other sound producing
instruments which caused noise pollution thereby disturbing and causing
nuisance to the normal life of the residents of the K.K.R.M. colony. The
appellant contended that the right to profess and practice Christianity is
protected under Articles 25 and 26 of the Constitution which could not
be dislodged by the court order (of the High Court). Thus, the order of
the Madras High Court to control the prayer meeting noise amounted to
interference with the religious practice of the community.
The Delhi High Court in Free Legal Aid Cell Shri Sugan Chand
Aggarwal v. Govt. (NCT of Delhi)*! declared:
...noise can well be regarded as pollutant because it contaminates environ-
ment, causes nuisance and affects the health of a person and would, there-
fore, offend right to life, of Article 21, if it exceeds reasonable limits. It was
also observed by the Court that effect of noise on health has not yet full
attention of our judiciary....
It was also suggested that separate courts must be established to imple-
ment noise rules truly and to deal with the noise pollution menace.
The Supreme Court referring to Article 19(1)(2) and the Noise
Pollution (Regulation and Control) Rules, 2000 framed by the Central
Government under the provisions of the Environment (Protection) Act,
1986 declared that right to religion under Articles 25 and 26 is subject
to “public order, morality and health” and “no religion prescribes or
preaches that prayers are required to be performed through voice ampli-
fiers or by beating of drums”.
Dismissing the appeal of the Church, the court referred to its own
observation in Acharya Maharajshri Narendra Prasadji v. State of
Gujarat** pronounced in 1974 as follows:

Om Birangana Religious Society v. State of Orrisa, (1996) too

CWN 617.
80. Church of God (Full Gospel) in India v. K.K.R. Magestic Colon
y Welfare Assn.
(2000) 7 SCC 282: 2000 SCC (Cri) 1350.
81. AIR 2001 Del 455.
82. (1975) t SCC rr: AIR 1974 SC 2098.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 265

[N]o right in an organised society can be absolute. Enjoyment of one’s rights

must be consistent with the enjoyment of rights of others.
..one fundamental right 6f a person may have to coexist in harmony
with the exercise of another fundamental right by others and also with rea-
sonable and valid exercise of powers by the State in the light of the Directive
Principles in the interests of social welfare as a whole.
In P.A. Jacob v. Supt. of Police**, the Kerala High Court made a very sig-
nificant pronouncement. It declared that “Article 21 guarantees freedom
from tormenting sounds, which is negatively the right to be let alone,
is positively the right to be free from noise. Exposure to high noise is a
known risk and it is proved to cause bio-chemical changes in the human
body.” Thus, “compulsory exposure of unwilling persons to dangerous
and disastrous levels of noise, would amount to a clear infringement of
their constitutional guarantee of right to life under Article 21. Right to
life, comprehends right to a safe environment, including safe air quality,
safe from noise”.
In this case, the petitioner sought permission to hold a meeting and to
use sound amplifiers. The Superintendent granted permission, but later
on, apprehending that the views of the petitioner could incite violence,
withdrew it. He pleaded that denial of permission amounts to denial of
freedom of speech and expression guaranteed under Article 19(1)(a). The
court declared that withdrawal of the permission to use loudspeakers did
not amount to denial of freedom of speech and expression. On the other
hand, use of loudspeakers amounts to violation of right to life which
includes right to clean, pollution free environment and freedom from
noise. Exposure to unwilling/undesired noise may cause various kinds
of diseases and disorders in the human body as scientific studies have
proved this beyond doubt.

1.13.1 Exemption/relaxation reasonable

The constitutionalLavy, of Rule 5(3)of the Noise Rules, 2000 was
challenged in Noise Pollution (7), re v. Union of India** we rule was
incorporated in 2002 authorisi ng the State en to “permit use CASE PILOT

of loudspeakers or public address system during night hours (between

10.00 p.m. to 12.00 p.m.) on or during any cultural or religious festive
occasions ...not exceeding 15 days in all during a calendar year”. The
petitioners contended that this relaxation was violative of Article 21.
The Supreme Court held that such relaxation granted by the Central
Government in the exercise of statutory power [under Section 25,
Environment (Protection) Act, 1986] are reasonable and constitutional.
The court, further, clarified that such powers shall be exercised 1) by
83. AIR 1993 Ker 1.
84. (2005) 8 SCC 796: AIR 2006 SC 348.
266 ENVIRONMENTAL LAW |CHAP.

referring to the State as a unit and not by reference to districts; and 2) the
number and particulars of days on which such exemption will be opera-
tive, must be declared in advance by the State Government.

1.14 Articles 19(1)(a), 21 and noise pollution

The Calcutta High Court Burrabazar Fire Works Dealers Assn. v.
Commr. of Police’ declared that Article 19(1)(f) does not guarantee
“absolute” right to practice profession and carry on business and trade
if it is causing noise pollution or is a health hazard and disturbs the
peace. The citizens do not have a fundamental right to manufacture and
sell such fireworks which transgress the permissible limits or standards
set by the Environment (Protection) Act, 1986. Any firework producing
excessive noise is a health hazard and disturbs peace. Further, it forces a
man to hear the noise. It was also declared that a court is the protector
of rights of citizens and opined that there must be some effective legis-
lation to curtail and control noise producing fireworks. As per direction
of the High Court, the Pollution Control Board (PCB) issued orders for
the ambient air quality in respect of noise relating to manufacture, sale
and use of fireworks. Article 19(1)(a) read with Article 21 makes it amply
clear that all citizens have a right to clean environment, to live peacefully
and to sleep undisturbed at night.
...under Article 19(1)(a) read with Article 21 of the Constitution of India,
citizens have a right to decent environment and they have a right to live
peacefully, right to sleep at night and to have a right to leisure which are all
necessary ingredients of the right to life guaranteed under Article 21 of the
Constitution.
A similar declaration was also made by the Calcutta High Court in
Om Birangana Religious Society v. State of Orrisa®*, where the court
declared that the right to profess, practice and propagate religion is sub-
ject to the provisions of Article 19(1)(b) of the Constitution. It cannot be
said that “a citizen should be coerced to hear anything which he does not
like or which he does not require”.

1.15 Public interest litigation (PIL) and noise pollution

The PIL can be filed by any public-spirited person or institution under
Articles 32 and 226 of the Indian Constitution. The use of loudspeakers
can be permitted if the noise from the loudspeakers is within permis-
sible limits and the PCB is also satisfied that there was no noise pollu-
tion by the use of loudspeakers. In Guruvayur Devaswom Managing

85. AIR 1998 Cal 121.

86. (1996) 100 CWN 617.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 267

Committee v. Supt. of Police*’’, a writ was filed under Article 226 of

the Constitution against the orders of the Police Officer (S.P.) to remove
loudspeakers which were installed for a festival season. They were
installed within a radius of one kilometre. The loudspeakers were of
horn type. The respondent alleged that such type of loudspeakers caused
irreparable damage to the ears and they were installed without obtaining
sanction from any competent authority. After filing a writ petition on
which stay was issued by a Single Judge, the Guruvayur temple author-
ities approached the Kerala State Pollution Control Board (SPCB) to get
expert opinion regarding the use of horn-type loudspeakers. The Board
submitted its report to the court mentioning that the audibility of the
devotional songs was limited within the temple area and they also served
the purpose of a wake-up call for devotees who had to attend the morn-
ing pooja, or for essential announcements as for missing persons, lost
wallets and other goods. The announcements in various languages used
to guide the devotees from outside the State. Further, there was no com-
plaint of noise from loudspeakers. The horn-type loudspeakers were also
found suitable and directional for such purposes and better suited for
outside use. Thus, the report of the SPCB found that there was no noise
pollution if the loudspeakers were put at a height of three metres on the
temple premises. Therefore, the court accepted the expert opinion of the
PCB and permitted the use of horn-type loudspeakers and the police
authorities were directed to give sanction to the Management Committee
of the temple to install such loudspeakers.
The Himachal Pradesh High Court in Ved Kaur Chandel v. State of
H.P.*8, accepting a PIL for threatened pollution of air, water and noise
from the establishment of a tyre retreading unit, observed that the PCB
has a heavy responsibility to ensure that before production starts the
industry takes necessary precaution not to cause air, water and noise
pollution. The industry must fulfil all the conditions of the NOC issued
by the PCB.
In Citizens Council, Jamshedpur v. State of Bihar*, a PIL was filed
by the residents of the locality under Article 226 praying to reject the
permission granted to the Handloom and Khadi Board to organise an
exhibition in a public park. The petitioner submitted that the park is
used for morning walks, and children of the locality play there. Besides
this, the exhibition would cause air pollution and noise pollution. The
respondents argued that such exhibitions were also organised in the past
and the nearby educational institutions had no objection to the holding
of the exhibition.

87. AIR 1998 Ker 122.

88. AIR 1999 HP 59.
89. AIR 1999 Pat 1.
268 ENVIRONMENTAL LAW [CHAP.

The court, after considering all the factors, held that since the peti-
tioner failed to produce any evidence that the exhibition would be a
health hazard and cause noise pollution and that, as the exhibition had
already started, the petition was not maintainable. 7
In M.C. Mehta v. Union of India”, the petitioner—an environmen-
talist lawyer—filed a PIL under Article 32 seeking a direction against
the Haryana Pollution Control Board (HPCB) to control air and noise
pollution caused by stone crushers, pulverisers and mine operators in
Faridabad —within a radius of five kilometres from the tourist resorts of
Badkhal lake and Surajkund. It was found that noise levels were in the
range of 52-82dB and the noise level at a distance of 500 m from the
working mine was found at 40-42 dB(A). During blasting, at a distance
of 500 m and when 820 gms of explosives were used, the noise level was
59.5 dB(A). This all was having an adverse impact on the local ecology.
Besides rock blasting, the movements of heavy vehicles and operation
of mining equipment and machinery caused considerable pollution in
the form of noise and vibrations. The court held that to preserve the
environment and control pollution within the vicinity of the two tourist
resorts, it was necessary to stop mining in the area. Further, the court
directed to develop a green belt of 200 mts at 1 km radius all around the
boundary of the two lakes and to leave another 800 mts as a cushion to
absorb the air and noise pollution. Further, trees should be planted on
both sides of the roads leading to the mines and lakes to minimise the
noise pollution. The HPCB also declared this tourist area as a sensitive
area, as the ambient air quality standards are more stringent in sensitive
areas than other areas.
Noise pollution/nuisance from industries was also recognised as
a health hazard in V. Lakshmipathy v. State of Karnataka®' by the
Karnataka High Court. In this case, it was found that industries were
established in an area marked as residential area in the Development
Plan of the city. Polluted air, land and noise nuisance posed danger to
the health of the residents of the area. Therefore, the court ordered for
the closure of the industries of that area and to remove all encroach-
ments made by the industries in the residential area. The court also held
that there was sufficient evidence to prove the existence of air pollution
and noise pollution affecting the environment and proving detrimental
to the members of the public. The persistent pollution which is offen-
sive and detrimental to public health is violative of Article 21 of the
Constitution—the right to life. Further, the court directed the authori-
ties to implement the order within 60 days.

90. (1996) 8 SCC 462: AIR 1996 SC 1977.

91. AIR 1992 Kar 57.
8] NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION 269

In Sayeed Maqsood Ali v. State of M.P.?*, the Madhya Pradesh High

Court stated that reverence for life is a fundamental principle of moral-
ity and life without good health is denial of life. It also mentioned that
even in the international sphere, emphasis is laid on proper health and
a right is enshrined providing security against sickness and disablement
under Article 25 of the Universal Declaration of Human Rights, 1948.
In this case, the petitioner was a cardiac patient who was residing near
an eye hospital and beside a dharmshala. The dharmshala, run by the
State, accommodates various categories of persons and many religious
functions were held in it throughout the year. It was also made available
for holding marriages and other functions with loudspeakers which were
used at a very high pitch disturbing the petitioner and other residents of
the area.
The court observed that the noise is undoubtedly psychologically
harmful as an invisible and insidious form. It also causes irreversible
harm. Therefore, it violates the right to life which includes the right to
health. Therefore, the court directed that the Noise Pollution (Regulation
and Control) Rules, 2000 must be implemented in letter and spirit and
that dharmshala should not be let out to any person/organisation/asso-
ciation to organise functions who have not obtained permission from
the competent authority with regard to use of loudspeakers or public
address system.

92. AIR 2001 MP 220; also see, Free Legal Aid Cell Shri Sugan Chand Aggarwal v.
Govt. (NCT of Delhi), AIR zoo1 Del 455.
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 CHAPTER 9
Water Pollution and the Law

A new danger is haunting man—the danger of self-destruction. He

embarked upon this deadly course during his age of ignorance, rapidly
raced along it during his age of industrial, scientific progress and now
finds it highly impossible to stop in spite of scientific enlightenment and
resultant realisation of his being foolish. In the beginning, man’s relation-
ship with nature was of mutual harmony. But with the advent of enor-
mous industrialisation, population growth and scientific advancement
in various walks of life, the ecosystem has been disturbed and damaged
beyond repair. The balance between the mobile living (man, animals,
birds, insects, etc.), the immobile living (trees, plants, plankton) and
three sustenance systems (soil, water and air) has been disturbed. The
destructive role of nature starts naturally when such imbalance is agi-
tated. Droughts, excessive rainfall, hailstorms, various kinds of deadly
diseases resulting in the destruction of man and material are the result of
imbalances of nature.
“environment” includes the 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.’
Thus, in our biosystem and ecosystem, water is an essential substance
for life. The mobile living and immobile living both cannot live, exist
without water.
Water is sustenance of the life cycle. It must be preserved and pro-
tected from all types of pollutants. The human body and other living
organisms require it, but in its pure form, free from any type of contam-
ination. But man is disturbing water bodies, viz. rivers, wells, streams,
seas. On land, the natural water system is being polluted by the addition
of industrial wastes, urban wastes, pesticides and related pollutants. Sea
water, especially that close to land or the continents, is likewise being
polluted by industrial and urban wastes mostly brought by rivers. With

1. S. 2(a), Environment (Protection) Act, 1986.

 272 ENVIRONMENTAL LAW [CHAP.

the fast-growing human population and rapid industrialisation, it 1s

doubtful whether we will be able to get enough and pure water for our
consumption for long. On the other hand, chemicals and effluents that go
into the sea may be effective in varying degrees in directly or indirectly
destroying blue-green algae, plants and other organic life. The decay of
plant life may, in turn, disturb the oxygen quantity in the atmosphere, as
air oxygen is the result of photosynthesis of plants. Thus, this growing
pollution of water is disturbing the ecosystem.
The Stockholm Declaration on Human Environment (5 to 16 June
“1972) gave aWarning in express terms:
Man is both creator and moulder of his environment, which gives him physi-
cal sustenance and affords him the opportunity for intellectual, moral, social
and spiritual growth. In the long and tortuous evolution of the human race
on this planet a stage has been reached when, through the rapid acceleration
of science and technology, man has acquired the power to transform his envi-
ronment in countless ways and on an unprecedented scale. Both aspects of
man’s environment, the natural and manmade, are essential to his well-being
and to the enjoyment of basic human rights—even the right to life itself.
The representatives of 113 world governments assembled in this UN
Conference and resolved 26 principles to protect and improve the envi-
ronment. This UN Conference which was held at Stockholm, may be
said to be “the Magna Carta on Human Environment”. These princi-
ples or “the Magna Carta on Human Environment” are the guidelines
for the world governments for improving and protecting the present-day
environment for the benefit and posterity of all people. Principle 2 of the
declaration requires:
\ Principle 2:\The natural resources of the earth including the air, water, land,
flora and fauna and especially representative samples of natural ecosystem,
must be safeguarded for the benefit of present and future generations through
careful planning or management, as appropriate.
The UN General Assembly passed a resolution on 15 December 1972
emphasising the need for active cooperation among the States to improve
and protect the human environment. This resolution has designated
5 June as “World Environment Day”. Again, the world community of
States assembled in Nairobi from ro to 18 June 1982 to commemorate the
roth anniversary of the Stockholm Conference on Human Environment.
Representatives of ro5 nations made.a declaration of Special Charter on
18 May 1982 (known as the Nairobi Declaration) expressing serious con-
cern about the present state of environment worldwide and recognised
the urgent necessity of intensifying the efforts at the global and national
levels to protect and improve it.
Significance of purity and sufficiency of water were also explic-
itly emphasised in the proclamation on to November 1980 when
the
9| WATER POLLUTION AND THE LAW 273

UN declared the “International Drinking Water Supply and Sanitation

Decade”. India is also a’signatory to this declaration.
a

1. RIGHT TO WATER: PART OF RIGHT TO LIFE

Theame Court pronounced a significant judgment in Susetha v.
State of T.N.* (Susetha). The court has observed:? pccaikon
(T]he water bodies are required to be retained. Such requirement is envis-
aged not only in view of the fact that the right to water as also quality life
are envisaged under Article 21 of the Constitution of India, but also in view
of the fact that the same has been recognised in Articles 47 and 48-A of the
Constitution of India. Article 51-A of the Constitution of India furthermore
makes a fundamental duty of every citizen to protect and improve the natural
environment including forest, lakes, rivers and wildlife.
It was also clarified that “natural water storage resources are not only
required to be protected but also steps are required to be taken for restor-
ing the same if it has fallen to disuse”. The court also advocated for the
protection of wetland and natural lakes and referred the related cases
for their protection and improvement.’ In the instant case, the petitioner
pleaded for the protection and restoration of an old tank of village, which
was lying in disuse and in dilapidated condition. The court dismissed the
petition as there were already five tanks in working condition in addition
to one in question and this recharge of the tank would be insignificant.
The court, while arriving at this conclusion, declared that the State is
enjoined with a duty to maintain natural resources providing for water
storage facilities. And the State is required to take preventive measures
for removal of unlawful encroachment so as to maintain the ecological
balance. Treating it as constitutional obligations, it was emphasised that
in cases of protection of natural resources, the court has a responsibil-
ity of “a higher degree of judicial scrutiny”. It was declared that the
“principle of sustainable development” and “doctrine of public trust” are
fundamental concepts of Indian law and are not empty slogans. In the
light of these principles, we have to strike a balance between the need to
protect ecological balance and necessity for development activities like
construction of houses for poor.
Looking to the necessity and importance of potable water, the Kerala
High Court in Vishala Kochikudivella Samarakshana Samithi v. State
of Kerala’, directed the State Government to take all steps necessary

2. (2006) 6 SCC 543: AIR 2006 SC 2893.

3. Ibid, 546 (SCC).
4. For wetland, People United for Better Living in Calcutta v. State of W.B., AIR 1993
Cal 215 and for natural lakes, T.N. Godavarman Thirumulpad (99) v. Union of
India, (2006) 5 SCC 47.
5. AIR 2006 NOC 744 (Ker).
 ENVIRONMENTAL LAW [CHAP.
274.

for supply of potable drinking water in sufficient quantity to the people

through an efficient water supply system. It was also observed that such
projects must be given precedence over other developmental projects.
Water supply project must be completed at the earliest even at the cost of
other projects.
In Santosh Govind v. State of Maharashtra, the Bombay High Court
(Aurangabad Bench) declared that the right to access to clean drinking
water is fundamental to life and the State is duty-bound to supply potable
water to the citizens.

1.1 Old texts and impurity of water

In India, the purity of water has always been emphasised from time
immemorial. In the Rigveda, the Atharvaveda and the Yajurveda, we
find many verses in praise of Lord Varun (God of Water) and Lord Indra.
In the Yajurveda water was regarded as a source of life and grain.’
HU IAA AIST Tae eATAT
aad ast: | eaRTaaasHerR. Lick
PHA ATA STS | |
aa aradt at Weeat: aatasrate:
ot seaysicd saa, AIATEY: | |
Bhagavat Gita also mentions about worshipping of Lord Varuna.* This
shows that in Vedic times, water was regarded as a component of life and
thus was regarded sacred, not to be polluted. In Manusmriti, the first
systematic treatise on various laws, water is regarded as a creator and
source of life on the earth.’ It has further been mentioned in household
rules of Manusmriti:
TRY A FS ATS aT HAC SI
smenferrraer
ched ar enter ar11 TV: 56
[Let him not throw urine or faeces into the water, nor saliva, nor (clothes)
defiled by impure substances, nor any other impurity, nor blood, nor poi-
sonous thing.]
The protection of a water tank or dam was equivalent to the protec-
tion from a highway robbery or plundering of a village. It is provided
that one who does not give assistance when a dyke is being destroyed,
shall be banished with his goods and chattels. To take away water of a
tank or cut off the supply of water was an offence punishable with fine.”

6. (2013) 3 FLT 50 (Bom).

7. Yajurveda, 1X, 6 & 7.
8. qeulareannen saaitar, 10/29.
9. Manusmriti, I, 78.
10. Manusmriti, 1X, 281, 274.
9] WATER POLLUTION AND THE LAW 275

This proves that in olden times it was the duty of all to keep water pure,
and pollution or destruction of water was recognised as an offence.

1.2 Modern laws

In modern times, water pollution has assumed alarming dimensions in
the light of advanced scientific and technological growth. Recent deadly
growth of Nuclear Power Plants (NPP) and disposal of their wastes and
its grave Consequences compel us to think about the propriety, effective-
ness of present laws. The pollution of water means and includes render-
ing the water noxious or unfit for use, making soft water hard, making
water saltish, altering its temperature, discharging substances which
though harmless become noxious by combination with other substances
in water or discharged into it. The pollution must be material or appre-
ciable and not trifling.

1.3 Action under law of tort

The pollution of water is a tortious act. It is covered by the tort of nui-
sance as it Causes injury to person and property, comfort or health. In
Pakkle v. P. Aiyasami Ganapathi"', it was declared by the Madras High
Court that altering the natural quality of water whereby it is rendered
less fit for any purpose for which in its natural state it is capable of being
used gives cause of action in nuisance. In this case a water tank, in which
the villagers had a common right to take water from, was polluted by the
zamindar of the village who placed some salt pans in the tank. The suit
was brought in a representative capacity. The pollution of tank water was
found actionable. But in such cases, it is necessary to prove actual damage
or proof of imminent danger. Further, it must be substantial or material,
not trifling. In Fletcher v. Bealey'*, the plaintiff was a riparian owner
who used water from the river in his paper-manufacturing process. The
defendants were alkali manufacturers and were in the habit of depositing
heaps of refuse on their land which was close to the river. It was proved
that in some years, the noxious fluid would begin to flow from the heap
into the river. Thus, it would render the water of the river unfit for the use
of the plaintiff in the paper-manufacturing process. The plaintiff did not
suffer any actual injury. Parson J stated the law as follows:
There are at least two necessary ingredients for a quia timet action. There
must, if no actual damage is proved, be proof of imminent danger, and there
must also be proof that the apprehended damage will, if it comes, be sub-
stantial....I think it must be shown that if the damage does occur at any

11. AIR 1969 Mad 351.

12. (1885) 28 Ch D 688.
 276 ENVIRONMENTAL LAW [CHAP.

time, it will come in such a way and under such circumstances that it will be
impossible for the plaintiff to protect himself against it if relief is denied to
him in a quia timet action.
Thus, the action failed as the plaintiff could not prove any substantial
damage.
Action can also be brought against statutory bodies for nuisance by a
private individual for water pollution.” In Goldsmith v. Tunbridge Wells
Improvement Commissioners", the plaintiff was awarded an injunction
to restrain the defendants from depositing sewage from their own town
into a stream which passed through his land. Sir G.J. Turner observed:
It is not every case of nuisance that this Court should interfere. Ithink that
it ought not to do so in cases in which the injury is merely temporary and
trifling; but I think it ought to do so in cases in which the injury is permanent
and serious.
The right to sue cannot be lost by long continuance of the pollution nui-
sance. In Pride of Derby and Derbyshire Angling Assn. Ltd. v. British
Cleanese Ltd.'°, it was held to be no excuse that the stream was already
polluted by others, and the local authority acted not for profit but for
the benefit of a large population, or that it had a statutory authority to
drain a city.
Similarly in Overseas Tankship U.K. Ltd. v. Morts Dock & Engg. Co.
Ltd.'* (Wagon Mound No. 1 case), it was observed by the Privy Council
that the spillage of oil on seawater due to negligence of the servants of the
defendants amounted to nuisance. Thus, discharge of refuse, effluents,
oil, waste, etc., in water is actionable under the law of tort as an action
for nuisance.

1.4 Statutory provisions and water pollution

Legal control for water pollution was available in British India also.
Juristic archaeologists, willing to dig into legislative debris, will discover
that the Britishers wanted Indians to keep away from pollution.
Perhaps, the first Act£oncerning control of water pollution in India
is the Shore Nuisance (Bombay and Kolaba) Act, 1853. This statute was
operative in Bombay and Kolaba only. It authorised the Collector of Land
Revenue to issue notice to the party concerned requiring it to remove
nuisance anywhere below high water mark or get it abated or removed
himself. Another statute dealing with water pollution is the Oriental
bs, "A — 7

13. Brijbala Prasad v. Patna Municipal Corpn., AIR 1959 Pat 273.
**

os
af

14. (1886) 1 Ch App 349. It was relied in Dell v. Chesham Urban

District Council, (1921)
3 KB 427.
15. (1953) 2 Ch 149: (1953) t AIl ER 179 (CA).
16. 1961 AC 388: (1961) 2 WLR 126 (PCy.
 9| WATER POLLUTION AND THE LAW 277

Gas Company Act, 1857. This Act provided punishment for pollution of
water caused by the company. (>) )
After ten years,in 1867, the — Act imposed a duty on innkeepers
to keep water in the Sarai fit forconsumption by people and animals
using it, to the satisfaction of the District Magistrate. The violation of
such duty entailed a liability of ¥20.
One of the important enactments was the Northern India Canal and
rainage Act, 1873. Section 70(3) of the Act provided that any interfer-
ence with or alteration in the flow of water in any river or stream, so as
to endanger, damage or render less useful any canal or drainage work
would be an offence. This entailed the punishment of imprisonment not
»-exceeding one month or a fine not exceeding = 1000 or both.
E>) The Easement Act, 1882 has recognised the doctrine of riparian rights
to unpolluted water. Gection 7 jor the Act in Illustrations (f) and (h)
mentions that every owner has a right to get unpolluted water without
material alteration in quantity and temperature. It may be noted that
prescriptive right as provided under Section 15 15 does not recognise the
right to pollute water as the water (river, well, sea, underground water)
belongs to government which has sovereign right to water.
Other legislative measures to control the water pollution were the
3;-the
: Inland
er

ot deal directly and exclusively

with water+ pollution but had some provisions dealing with it. The first
pollution and having specific provisions
is the Penal Code, 1860 (IPC). Section 277 of the Code provides:
whoever voluntarily corrupts or fouls the water of any public spring or reser-
voir, so as to render it less fit for the purpose for which it is ordinarily used,
shall be punished with imprisonment of either description for a term saiach
~
may extend to three months or with fine which may extend to five hundred
rupees or with both._
But this provision is narrow in scope as it does not apply to a public
river or water flowifi® in a continuous stream in and canal
and other running water. A general provision,(Section 268 of the Code,
defines “public nuisance” which can cover other ater pollution.
This section covers any act or illegal omission which causes any danger,
injury ora he public. Such act. Spin ewer is punish-
able gn eat290/of the Coder “Section 269 of the Code provides
punishment fora negligent act likely to spread iiinfection or disease dan-
gerous to life and prescribes a punishment of imprisonment which may
extend to six months or with fine or with both. So this section also indi-
rectly covers water pollution. Another relevant provision ig Section 426
which punishes “mischief”. Section 425° defines mischief. ‘Fhis-seetion
provides that
 [CHAP.
e >]

278 ENVIRONMENTAL LAW

ge in
Whoever... causes the destruction of any property, or any such chan
value or
any property or in the situation thereof as destroys or diminishes its
utility, or affects it injuriously, commits “mischief”.
Thus, to render water unfit for human consumption or to injure the
water-life or an act which diminishes its utility amounts to mischief
which is punishable under the Code.
o ‘The Factories Act, 1948/also has provis ions regarding the disposal
sity
/ of-water and effluents of a
.
factory.Section
\
12-6f the Act
.
provides that
effective arrangements shall be made-in-every factory for the disposal
of water and effluents from them. Section_92»provides punishment for
non-observance or non-compliance with(Section 12) which is imprison-
ment for a term which may extend to two years or fine which may extend
to ¥1,00,000 or both.
Some of the other statutes dealing with water pollution are the Fisheries
Act,
Act, 1897; the River Boards Act, -1956; the Merchant Shipping 1958
O and the Municipal Acts.of the States. Some States have also passed their
‘own water pollution laws, such as the Orissa River Pollution Prevention
Act, 1953;-the-Maharashtra Prevention of Water Pollution Act,.1969.
) The abovementioned sections do not firmly deal with water pollution
, ft

and are not sufficient enough to deal with such problems. In Babulal v.
Ghanshamdas Birla’, the directors and manager of the Gwalior Silk
Mill were prosecuted under Sections 268, 269, 277, 288 and 290 IPC.
But the Madhya Pradesh High Court held that the mill officials could
not be prosecuted under the Code unless a specific act or omission was
~attributed to them. It shows infirmities of the IPC provisions.
|. ‘The Criminal Procedure Code, 1973 (CrPC) also has some general
provisions which can cover polltition activities: Sections 133 and 144
CrPC empowers the District or Executive Magistrate to take immediate
measures to prevent or abate the noxious activity or public nuisance. The
historic illustration of the application of these provisions is Municipal
Council, Ratlam v. Vardichan'*. In this case, residents of Ratlam filed
a complaint under Section 133 CrPC alleging that the municipality had
failed to prevent the discharge from the nearby alcohol plant of malo-
dorous fluids into the public street (zallah) and provide sanitary facilities
on the roads. The Supreme Court directed the municipality to follow the
statutory duties and stop the effluents from the alcohol plant from flow-
ing into the zallah or street. Krishna lyer J while delivering the judgment
observed:
The law will relentlessly be enforced and the plea of poor finance will be
poor alibi when people in misery cry for justice. The dynamics of the judi-
cial process has a new ‘enforcement’ dimension not merely through some of

17. Decided on 19-5-1976 (MP).

18. (1980) 4 SCC 162: 1980 SCC (Cri) 933.
 9| WATER POLLUTION AND THE LAW 279

the provisions of the Criminal Procedure Code (as here) but also through
activated tort consciousness. The officers in charge and even the elected rep-
resentatives will have to face the penalty of the law if what the Constitution
and follow-up legislation direct them to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.
In some cases the Supreme Court has taken suo motu cognizance of
water pollution, particularly river pollution cases.!”
The statute which directly and exclusively deals with water pollution
passed by Parliament is the Water (Prevention and Control of Pollution)
Att, 1974. Though water is a State subject under the Constitution, but
——
the Centre was requestéd by some of the States under Article 2.52(I1) jof
the Indian Constitution to pass this law. The Act is quite comprehensive
and it covers almost every type of water pollution, viz. rivers, water-
courses (whether flowing orfor the time being dry), inland water, natural
or artificialand
an subterranean water, sea or tidal waters. This Act consists
of 64 sections,
Another
her significant case on water pollution is Kerala State Board for
Prevention and Control of Water Pollution v. Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd.”° in which Sukumaran J emphasising the purity of water
observed:
Ninety-five per cent of the nations in the world have watery coasts. Water
influences the life and health of the people, prominently and pronouncedlly. It
constitutes an important and integral part of our environment.
Preservation of the purity of water has engaged the attention of admin-
istrators all over the world even from the ancient times. H.A. Hawkes
states:
The sanitary laws of Moses are well known and the ancient Persians at least
controlled river pollution. They were forbidden by law from discharging
organic refuse and other filth into the rivers.”
The main purpose under the Act is to ensure that trade effluents dis-
charged into the river are so regulated as not to cause any health hazard
to the public. The rules framed under the Act in minute details aim to
achieve this objective. The Water (Prevention and Control of Pollution)
cCéss- Act, 1977 |S dovetailed into the Pollution~Control Act; 1974.
Soercine. Section 7, Cess Act must be read with the provisions of the
~ Pollution Control Act. This Act enables the industry to ¢arn a rebate\if
it installs a treatment plant.It subserves the purpose of the Pollution
ol of controlling the deterioration of the quality of
Act, namely
Contr

19. News Item Published in Hindustan Times Titled “And Quiet Flows The Maily
Yamuna”, re, (2012) 13 SCC 736.
20. AIR 1986 Ker 256.
21. See, “The Ecology of Sewage Bacteria Beds” in Gordon T. Goodman (Ed.),H
Hawkes, Ecology and Industrial Society, 119.
280 ENVIRONMENTAL LAW [CHAP.

trade effluents. The rebate can be claimed only during the period the
treatment plant works to the satisfaction of the authorities.

2. WATER (PREVENTION AND

CONTROL OF POLLUTION) ACT, 1974
The main aim and object of the Act of 1974 is “to maintain or restore
the wholesomeness of water and to prevent, control and abate water pol-
lution”. To achieve these objectives, the Act has provided various chap-
ters which are... comprehensive. In view of ere 2(e) read with
Sections 17 and 18 df this Act, the fundamental SHECINE. of the statute
is to provide clean water to citizens.”
The Supreme Court in Susetha?’ made it clear that the State is under
a constitutional obligation tinder Article 48 to protect the natural water
bodies but not necessarily all the man-made water tanks if they have
become useless and are no more in use. It was also declared that
water bodies are required to be retained. Such requirement is envisaged not
only in view of the fact that the right to water as also quality of life are envis-
aged under Article 21 of the Constitution of India, but also in view of the fact
that the same has been recognised in Articles 47 and 48-A of the Constitution
of India.
Thus, the State is under an obligation to protect natural lakes, rivers,
wetland, marshland, but the same principle is not applicable in relation
to artificial tanks which were in a dilapidated conditions. In some of
the cases, it has been made clear that to supply potable drinking water
in sufficient quantity through an efficient water supply system must be
given precedence over other developmental projects of the area. Such
water project must be completed at the earliest even at the cost of other
projects.*
Section 2 of the Act has defined certain basic terms used in the Act.
While defining water pollution, it provides:
“pollution” means such contamination of water or such alteration of phys-
ical, chemical or biological properties of water or such discharge of any sew-
age 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. [S. 2(e)]
22.A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
23. Susetha v. State of T.N., (2006) 6 SCC 543: AIR 2006 SC 2893. See, for the
protec-
tion of Wetland, People United for Better Living in Calcutta v. State of W.B.,
AIR
1993 Cal 215; and for natural lakes. T.N. Godavarman Thirumulpad (99)
v. Union
of India, (2006) 5 SCC 47.
24. Vishala Kochikudivella Samarakshana Samithi v. State of Kerala,
AIR 2006 NOC
744 (Ker).
9] WATER POLLUTION AND THE LAW 281

Thus, pollution means

contamination of water; or
alteration of physical, chemical or biological properties of water; or
discharge of sewage or trade effluent; or
H
PN
BW any other solid, liquid or gaseous substance which may or is likely
to create
(a) nuisance, or
(b) render such water harmful or injurious to
(i) public health or safety; or
(i) domestic, commercial, industrial, agricultural or other
legitimate uses, or to the life and health of animals or
plants or of aquatic organisms.
Thus, it is a very comprehensive definition and covers all changes in
physical, chemical or biological properties of water. The definition also
covers the rise in the temperature of water and discharge of radioactive
subsin ta water.es
the nc —
Further, the Act has used two terms in relation to water pollu-
tion—stream and well. The “stream” here includes 1) river; 2) water
courses (whether flowing or for the time being dry); 3) inland water
(whether natural or artificial); 4) subterranean water (underground
water); and 5) sea or tidal water.

2.1 Constitution of the Central Board

Section 3 provides that the Central Pollution Control Board (CPCB) shall
be appointed and constituted by the Central Government to perform the
functions under the Act. Such a Board shall consist of the following 17
members to be nominated by the Central Government:
(a) a full-time chairman, being a person having special knowledge or
practical experience in respect of matters relating to environmental
protection or a person having knowledge and experience in adminis-
tering institutions dealing with the matters aforesaid;
(b) such number of officials, not exceeding five, to be nominated by the
Central Government to represent that Government;
(c) such number of persons, not exceeding five from amongst the mem-
bers of the State Boards;
(d) such number of non-officials, not exceeding three, to represent the
interests of agriculture, fishery or industry or trade, or any other
interest;
(e) two persons to represent the companies or corporations owned, con-
trolled or managed by the Central Government;

25. Bombay Environmental Action Group v. State of Maharashtra, AIR 1991 Bom 301.
 282 ENVIRONMENTAL LAW |CHAP.

(f) a full-time member-secretary, possessing qualifications, knowledge

and experience of scientific, engineering or management aspects of
pollution control.
The Board so constituted shall be a body corporate—meaning a “legal
person”, having perpetual succession. Therefore, it can also acquire, hold
and dispose of and enter into a contract.
Such Control Board can also sue and be sued in this name.

2.2 Constitution of the State Boards

Section 4 of the Act empowers the State Governments to constitute a
“State Pollution Control Board (SPCB)” in their respective States. Such
Boards shall consist of the following 17 members, who shall be nomi-
nated by the State Government:
(a) a chairman, being a person having special knowledge or practical expe-
rience in respect of matters relating to environmental protection or a
person having knowledge and experience in administering institutions
dealing with the matters aforesaid:
Provided that the chairman may be either whole-time or part-time
as the State Government may think fit;
(6) such number of officials, not exceeding five, who shall represent that
Government;
(c) such number of persons, not exceeding five, from amongst the members
of the local authorities functioning within the State;
(d) such number of non-officials, not exceeding three, representing the
interests of agriculture, fishery or industry or trade or any other
interest which, in the opinion of the State Government, ought to be
represented;
(2) two persons to represent the companies or corporations owned, con-
trolled or managed by the State Government;
(f) a full-time member-secretary, possessing qualifications, knowledge
and experience of scientific, engineering or management aspects of pol-
lution control, to be appointed by the State Government.
It has also been provided that every SPCB so constituted shall be a body
corporate having perpetual succession. Thus, it has been garbed as a
legal person, who can acquire, hold, and dispose of property and also
enter into a contract. A Board so constituted can also sue or be sued.

2.3 Members, officers and servants of Board

to be public servants
Section 50 of the Act confers the status of “public servant on the mem-
bers, officers and servants of the Board”. It provides:
50. Members, officers, and servants of Board to be public serva
nts.—All
members, officers and servants of a Board when acting Or purpo
rting to act
9| WATER POLLUTION AND THE LAW 283

in pursuance of any of the provisions of this Act and the rules made thereun-
der, shall be deemed to be public servants within the meaning of Section 21
of the Indian Penal Code {45 of 1860).
Thus, non-compliance with their orders, non-cooperation when
demanded from a person and restraining them from doing an official act
would amount to an offence under the IPC.

2.4 Disqualification of the members

The following are the disqualifications disentitling the Board’s members:
1. No person shall be a member ofa Board, who—
(a) is, or at any time has been, adjudged insolvent or has suspended pay-
ment of his debts or has compounded with his creditors, or
(b) is of unsound mind and stands so declared by a competent court, or
(c) is, or has been, convicted of an offence which, in the opinion of the
Central Government or, as the case may be, of the State Government,
involves moral turpitude, or
(d) is, or at any time has been, convicted of an offence under this Act, or
(e) has directly or indirectly by himself or by any partner, any share or
interest in any firm or company carrying on the business of manufac-
ture, sale or hire of machinery, plant, equipment, apparatus or fittings
for the treatment of sewage or trade effluents, or
(f) is a director or a secretary, manager or other salaried officer or
employee of any company or firm having any contract with the
Board, or with the Government constituting the Board, or with a
local authority in the State, or with a company or corporation owned,
controlled or managed by the Government, for the carrying out of
sewerage schemes or for the installation of plants for the treatment of
sewage or trade effluents, or
(g) has so abused, in the opinion of the Central Government or, as the
case may be, of the State Government, his position as a member, as to
render his continuance on the Board detrimental to the interest of the
general public.
2. No order of removal shall be made by the Central Government or the
State Government, as the case may be, under this section unless the member
concerned has been given a reasonable opportunity of showing cause against
the same. [S. 6]
It is to be noted that if a member has been removed, he cannot be renom-
inated as a member again.
Duration: A member or members, other than the Member-Secretary
shall remain in office for a period of three years from the date of his
appointment. But if the term expires, he can continue till the new mem-
ber enters upon his office.
The Central Government or the State Government, as the case may
be, may remove any member of their respective Boards before the expiry
 284 ENVIRONMENTAL LAW [CHAP.

of the said period. Before his removal, the member should be given a
“reasonable opportunity” to represent himself.
If a member absents himself from “three consecutive meetings” of
the Board, his seat would automatically fall vacant. Such casual vacancy
shall be filled by the fresh nomination of a member who will hold office
for the remainder of the term. [S. 5]
A Board shall meet at least once in every three months.
The Boards are also empowered to constitute Committees for any pur-
pose they think fit. [S. 9] The Board may also associate itself with any
person who can assist and advice the Board in performing its functions
under the Act. [S. ro]
In State of Manipur v. Chandam Manihar Singh’®, the Supreme Court
declared that in case where a casual vacancy arises, the person nom-
inated to fill the vacancy shall under Section 5(6) hold office only for
the remainder period of the term of the original member including the
Chairman. In this case the respondent was appointed on 16 October
1996 to fill the vacancy arising from the resignation of the erstwhile
Chairman. The Board was reconstituted under Section 4, Water Act,
1974 by the Governor on 26 May 1997. Respondent was shown as
Chairman of the reconstituted Board. Sometime, thereafter, certain alle-
gations were made against the respondent under Section 6(1)(g) seek-
ing his disqualification as he abused his position and his continuance
was detrimental to the interest of the general public. He was removed
as provided under Section 5(3) and Section 6(1)(g) by the Governor. The
Supreme Court held that he was entitled to continue for the remaining
period. But such order was of no use as he was completing his term one
month later, i.e. on 15 October 1999.

2.5 Functions of the Central Board

The main function of the Central Board shall be to promote cleanliness
of streams and wells in different areas of the State.2’
Other functions prescribed under the Act are to
(a)advise the Central Government on any matter concerning the preven-
~~ ~~ tionand control of water pollution; Pay CSR
(b) co-ordinate the activities of the State Boards and resolve disputes
among them;
(c) provide technical assistance and guidance to the State Boards, carry
out and sponsor investigations and research relating to problems
of water pollution and prevention, control or abatement of water
pollution;

26. (1999) 7 SCC 503: 1999 SCC (L&S) 1351.

2/.Ss 26(2).
 9] WATER POLLUTION AND THE LAW 285

Say plan and organise the training of persons engaged or to be engaged in

al programmes for the prevention, control or abatement of water pollu-
a on such terms and conditions as the Central Board may specify;
organise through mass media a comprehensive programme regarding
the prevention and control of water pollution;
(ee) perform such of the functions of any State Board as may be specified
in an order made under sub-section (2) of Section 18;
(f) collect, compile and publish technical and statistical data relating
to water pollution and the measures devised for its effective preven-
tion and control and prepare manuals, codes or guides relating to
treatment and disposal of sewage and trade effluents and disseminate
information connected therewith;
(gy lay down, modify or annul, in consultation with the State Government
concerned, the standards for a stream or well:
Provided that different standards may be laid down for the same stream
or well or for different streams or wells, having regard to the quality of
water, flow characteristics of the stream or well and the nature of the use
of the water in such stream or well, or streams or wells;
(b) plan and cause to be executed a nationwide programme for the pre-
vention, control or abatement of water pollution;
(i) perform such other functions as may be prescribed.**
Further, the Board has also been empowered to “establish” or “recognise
laboratories” to analyse the samples of water collected from a stream,
well, sewage or from trade effluents.
Section 18(2) enjoins the Central Government to direct the CPCB to
perform the functions of the SPCB where the State Board has “defaulted”
and “a grave emergency has arisen and where it is necessary or expedient
in the public interest” for such a specified period and area. The Central
Board can recover the expenses incurred while performing such func-
tions, with interest, from the State Board.
The Central Board is also bound by such directions as the Central
Government may give to it.?? And the Central Board may give directions
to the SPCB and the State Boards are bound to abide by them.

2.6 Functions of the State Boards

| Section 17 of the Act mentions 15 functions of the SPCB. These are very
-comprehensive and detailed. They are
(a) to plan a comprehensive programme for the prevention, control or
abatement of pollution of streams and wells in the State and to secure
the execution thereof;
(b) to advise the State Government on any matter concerning the preven-
tion, control or abatement of water pollution;

28.S. 16(2).
29. S. 18(1)(a).
286 ENVIRONMENTAL LAW [CHAP.

(c) to collect and disseminate information relating to water pollution and

the prevention, control or abatement thereof;
(d) to encourage, conduct and participate in investigations and research
relating to problems of water pollution and prevention, control or
abatement of water pollution;
(e) to collaborate with the Central Board in organizing the training of
persons engaged or to be engaged in programmes relating to the pre-
vention, control or abatement of water pollution and to organise mass
education programmes relating thereto;
to inspect sewage or trade effluents, works and plants for the treat-
ment of sewage and trade effluents and to review plans, specifications
or other data relating to plants set up for the treatment of water, works
for the purification thereof and the system for the disposal of sewage
or trade effluents or in connection with the grant of any consent as
required by this Act;
to lay down, modify or annul effluent standards for sewage and trade
effluents and for the quality of receiving waters (not being water in
an inter-State stream) resulting from the discharge of effluents and to
classify waters of the State;
to evolve economical and reliable methods of treatment of sewage and
trade effluents, having regard to the peculiar conditions of soils, cli-
mate and water resources of different regions and especially the pre-
vailing flow characteristics of water in streams and wells which render
it impossible to attain even the minimum degree of dilution;
to evolve methods of utilisation of sewage and suitable trade effluents
in agriculture;
to evolve efficient methods for disposal of sewage and trade effluents
on land, as are necessary on account of the predominant conditions of
scant stream flows that do not provide for major part of the year the
minimum degree of dilution;
to lay down standards of treatment of sewage and trade effluents to
be discharged into any particular stream taking into account the min-
imum fair-weather dilution available in that stream and the tolerance
limits of pollution permissible in the water of the stream, after the
discharge of such effluents;
to make, vary or revoke any order—
(:) for the prevention, control or abatement of discharges of waste
into streams or wells;
(77) requiring any person concerned to construct new systems for
the disposal of sewage and trade effluents or to modify, alter or
extend any such existing system or to adopt such remedial meas-
ures as are necessary to prevent, control or abate water pollution;
to lay down effluent standards to be complied with by persons while
causing discharge of sewage or sludge or both and to lay down, mod-
ify or annul effluent standards for sewage and trade effluents;
to advise the State Government with respect to the location of any
industry the carrying on of which is likely to pollute a stream or well;
9| WATER POLLUTION AND THE LAW 287

(0) to perform such other functions as may be prescribed or as may, from

time to time, be entrusted to it by the Central Board or the State
Government.
With respect to clause (7), the Board is constituted for the abovemen-
tioned function, but the Board can collect “consent fee and licence fee”
from the beneficiaries. Such collection of fee cannot be regarded as illegal
or unjust.°*°
The Supreme Court in A.P. Pollution Control Board (2) v. Prof. M.V.
Nayudu*' (M.V. Nayudu) held that having laid down the policy pro- CASE PILOT
hibiting location of industries within 10 kms, the State could not grant
exemption to any one industry to install its industry in a prohibited area.
Such exemption would be without statutory backing and also wholly
arbitrary and violative of Article 21, as the location of the industry was
a potential danger which could pollute the two reservoirs as the industry
was to use hazardous substances.
The State Board shall also establish or recognise laboratory or labo-
ratories to help in performing its functions and to analyse the samples
of water.
Every State Board is bound by the directions given in writing by the
Central Board or the State Government.”

2.7 Measures to prevent and control water pollution

Chapter V of the Act, which runs from Sections 19 to 33-B, consisting
of 17 sections, provides the following measures to prevent, control and
abate water pollution. These measures are discussed below.

2.8 Power of the State Government to restrict the

areas for the application of the Act
The State Government in consultation with or on recommendation of
the State Board, may, by notification, restrict the application of the Act
for certain area(s). The provisions of the Act shall apply to such declared
area(s) only. Such order/notification can be altered or modified by the
State Government.”®
But this section did not enable the State to grant exemption to a par-
ticular industry in a prohibited area for location of a polluting indus-
try. Exercise of such power is violative of the right to clean water under
Article 21 of the Indian Constitution.**
30. M.P. Rice Mills Assn. v. State of M.P., (1999) 1 MPLJ 315.
31. (2001) 2 SCC 62.
32.S. 18(1)(b).
33.8. 19.
34. A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
 ENVIRONMENTAL LAW [CHAP.
288

2.9 Power to obtain information

The State Board and its officers may make surveys, gauge and keep
records of flow or volume and other characteristics of streams and wells
and obtain information regarding them.
The Board may also give directions requiring any person to give infor-
mation as to the abstraction of water from a stream or well which is
substantial in relation to the flow or volume of the stream or well.
And it may also give directions to any person who is in charge of any
industry, operation or process, treatment or disposal system to furnish
information regarding any disposal system or any extension or alteration
thereto in the establishment with a view to prevent and control pollution
of water.”? ,

2.10 Power to take samples of effluents and the procedure to be

followed
The State Board or officer can take sample from any stream or well,
sewage or trade effluent.
Such sample is admissible as evidence in a legal proceeding if the pro-
cedure provided under sub-sections (3), (4), (5) of Section 21 are complied
with.** The procedure requires 1) a prior notice of his intention to take
sample; 2) that the two samples be taken in the presence of the occupier
or his agent; 3) that the sample so taken be marked, sealed and signed by
both the persons (person taking the sample and the occupier or agent);
and 4) that one of the samples be sent forthwith to the State laboratory
or any other recognised laboratory.
The sample shall be analysed by the Central/State/recognised labora-
tory and the report shall be sent to the Board, occupier or his agent. Such
report can be produced before a court of lat” )

2.11 Power of entry and inspection

Any person empowered by the State Board has a right to enter any place
including a vessel for the purpose of
1. performing any function of the Board;

PISS. 20:
36. In Delhi Bottling Co. (P) Ltd. v. Central Board for Prevention & Control of Water
Pollution, AIR 1986 Del 152, the court ruled that the procedure laid down under
S. 21 must strictly be complied with. In this case the procedure under S$. 21(e) was
followed, therefore, the report of such sample was declared inadmissible as evidence.
Thus, the orders of the Magistrate to restrain the trade and establish treatment plant
issued under S. 33 were unjustified and were quashed by the Delhi High Court.
Sti, 22.
9] WATER POLLUTION AND THE LAW 289

2. determining whether the industry, etc., is abiding by its duties/or

carrying out the directions, orders of the Board;
3. examining any plant, record, register, document, etc., or to con-
duct a search of any place in which he has reasons to believe that
an offence is being or is about to be committed; and to seize plant,
record or other material object to furnish evidence of the commis-
sion of an offence.**
The provisions of the CrPC regarding search and seizure shall apply in
such cases.
All the members, officers and servants of a Board when acting or pur-
porting to act under the Act shall be deemed to be public servants within
the meaning of Section 21 IPC.°*?

2.12 Prohibition of use of stream or well for disposal of

polluting matter, etc.
The Act declares that no person
1. shall knowingly cause or permit any poisonous, noxious or pollut-
ing matter to enter into any stream or well, or sewer or on land; or
2. shall knowingly cause or permit to enter into any stream any mat-
ter which directly or in combination with any other matter impedes
the proper flow of the water of a stream and which may aggravate
the pollution substantially.*°
A person shall not be guilty of an offence if he has a right to construct,
improve or maintain any stream, well, building, bridge, weir, dam, dock,
pier, drain, sewer, or to deposit material for reclaiming land or to sup-
port or protect the banks of a stream, or does accumulation of such
material with the consent of the Board.
The abovementioned acts are punishable under the Act. The State
Government may by notification exempt the operation of the above
clause.
Section 24, Water Pollution Control Act contains a prohibition on
use of stream (includes river, watercourse, inland water, subterranean
water, sea or tidal) or well for disposal of polluting matter, otherwise
than in accordance with the standards laid down by the Board. A new or
altered outlet for trade effluents into a stream is also prohibited, unless
the Board consents to it. It was further observed that the provision is
also applicable to old industries, which were in existence before the com-
mencement of the Act. They had to obtain the consent or sanction of the
Board within three months from the commencement of the Act.
38, $4 23.
59; S505
40.S. 24(1).
 290 ENVIRONMENTAL LAW [CHAP.

Thus, the Boards under the Water Pollution Control Act, 1974 are
responsible for monitoring industrial effluents, water quality in impor-
tant rivers like Ganga, Jamuna, Brahmaputra and research for pollution
treatment, etc.
Discharge of trade effluents into the river Ganga by Kanpur’s tan-
neries proves the State Board’s failure to take steps to prevent such dis-
charges. The court held that the fact that such effluents were being first
discharged in the municipal sewers did not absolve the tanneries from
being proceeded against under Sections 16, 17 and 24, Water Act.*'
In M.C. Mehta v. Kamal Nath*, the court directed that the Pollution
Control Board (PCB) of the State of Himachal Pradesh should not per-
mit M/s Span Motels Ltd. to discharge its untreated effluent into river
Beas. Previously, the Span Motels Ltd. were found discharging its
untreated effluent into the river which amounted to non-compliance with
Section 24, Water (Prevention & Control of Pollution) Act, 1974.
In Agarwal Textile Industries v. State of Rajasthan*, three writ peti-
tions were filed under Article 226 of the Constitution challenging the
validity of Sections 19 and 24(1), Water (Prevention and Control of
Pollution) Act, 1974. It was prayed that these sections were violative of
Article 14 as these sections conferred arbitrary discretionary powers on
the Water Pollution Control Board to declare an area as water pollu-
tion prevention and control area and prohibit use of stream or well for
disposal of polluting matter in either of them. But the Rajasthan High
Court declared both the sections intra vires the Constitution because the
Board has to exercise the powers in consultation with the SPCB, which
consists of experts. Further, the preamble of the Act guides the Board in
declaring the area as controlled area.
In this case, the SPCB presented an application under Section 33 of the
Act before the Chief Judicial Magistrate (CJM), Pali to issue a direction
that M/s Agarwal Textile Industries should not discharge trade effluents
into the Bandi river of Pali (Rajasthan). The CJM issued the order accord-
ingly. Writ petitions were filed in the Rajasthan High Court against this
order of the CJM.

2.13 Restriction on new outlets and new discharges

If a person establishes an industry, Operation, or process or any
treat-
ment and disposal system, which is likely to discharge sewage or
trade
effluent into a stream or well or sewer or on land, he must obtain
prior

41. M.C. Mehta v. Union of India, (1987) 4 SCC 463: AIR

1988 SC 1037.
42. (2002) 3 SCC 653: AIR 2002 SC 1515.
43. SBC Writ Petition No. 1375 of 1980, order dt. 2-3-1981.
9| WATER POLLUTION AND THE LAW 291

consent of the State Board. It is also applicable in bringing into use new
or altered outlets.** :
An application shall be made to the Board in a prescribed form and
with prescribed fee. On the receipt of the application, the State Board
may make such enquiry as it may deem fit. The Board may either grant or
refuse the consent for reasons to be recorded in writing. The consent may
be granted with conditions relating to nature, composition, temperature,
volume or rate of discharge of the effluent. The period of consent may
also be specified in the order.
The Supreme Court, in M.V. Nayudu*, clarified that the “prohibi-
tion” of Section 25(1) extends even to the “establishment” of the industry
or taking of steps for that process. Therefore, before the consent of the
PCB is obtained, neither can the industry be established nor can any
steps be taken to establish it. The respondent industry ought not have
taken steps to obtain approval of plans by Gram Panchayat, nor for con-
version of land use by the Collector, nor should it have proceeded with
civil work in the installation of machinery. Since the action was contrary
to the provisions of the Act, no equity or estoppel be claimed against the
statute. The industry could not seek an NOC after violating the policy
decision of the government.
Deemed Consent: When the Board fails to grant or refuse the con-
sent for discharge within a period of four months, the consent “shall
be deemed” to have been given unconditionally on the expiry of four
months.*°
In Vijayanagar Educational Trust v. Karnataka State Pollution
Control Board*’, the court had an occasion to decide when the con-
sent shall be treated as “deemed” consent. In this case, the Vijayanagar
Educational Trust wanted to establish a medical college and it applied for
“consent” to the Karnataka Pollution Control Board which was refused.
The trust went in appeal to the National Appellate Authority which
rejected its appeal for deemed consent. The High Court found fault with
the procedure and refusal to give deemed consent as the application to
obtain consent was filed on 27 November 1999 and the Board did not
do anything with the application except to write a letter on 9 February
2000 to organise a site inspection. Later on, the Board refused to grant
consent on 28 May 2000. Thus, this order was passed after four months
scheduled period under the Act. Further, the Board was neither heard
nor given an opportunity of being heard. Thus, the Board acted contrary

44.8. 25.
45. (2001) 2 SCC 62. Also see, Sterlite Industries (India) Ltd. v. Union of India, (2013)
4 SCC 575.
46. 5S. 25(7).
47. AIR 2002 Kar 123.
 292 ENVIRONMENTAL LAW [CHAP.

to the provisions of the Act. The court treated it as deemed consent after
a lapse of four months. ,
The Act also provides that if a person was already discharging any
sewage or trade effluent before the commencement of the Act, i.€.
23 March 1974, he must also seek the consent of the State Board within
a prescribed time.*®
Penalty has been fixed for non-compliance with the Act, under
Section 44 of the Act, but place of discharge like stream, well or sewage
or land shall be specifically mentioned in the complaint.”
The State Board may from time to time review the conditions imposed
while granting consent and may also revoke or modify them.*° The Board
may also require the industry to fulfil certain conditions imposed by the
Board before the consent is granted to it.

2.14 Appeal
Any person aggrieved by such order of the Board can appeal against the
order of the Board to the appellate “authority” constituted by the State
Government. The appeal should be made within a period of 30 days from
the date on which such order is communicated to him.*! After giving an
opportunity of being heard, to the appellant, the appellate authority can
dispose of the appeal; and while deciding the appeal it can 1) annul any
condition, or 2) substitute any condition.
Explaining the position regarding the “authority” under this section,
A the Supreme Court clarified and suggested to make necessary amend-
Mh ment in the statute in
CASE PILOT as follows:
There is also an immediate need that in all the States and Union Territories,
the appellate authorities under Section 28 of the Water (Prevention and
Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and
Control of Pollution) Act, 198x or other rules there is always a Judge of the
High Court, sitting or retired, and a scientist or group of scientists of high
ranking and experience, to help in the adjudication of disputes relating to the
environment and pollution. An amendment to existing notifications under
these Acts can be made for the present.
[The court also suggested:] As stated earlier, the Government of India
should, in our opinion, bring about appropriate amendments in the environ-
mental statutes, rules and notifications to ensure that in all environmental
48.S. 26.
49.N.P.N. Nachiammal Achi v. T.N. Pollution Control Board, (1995) 1 Crimes
134 (Mad).
30:8. 27.
51. S. 28. An appellate authority shall consist of single or three persons as the
State
Government may think fit.
$2. (1999) 2 SCC 718: AIR 1999 SC 812, 823; again in A.P. Pollution Contro
l Board (2)
v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
9] WATER POLLUTION AND THE LAW 293

courts, tribunals and appellate authorities, there is always a Judge of the rank
of a High Court Judge or a Supreme Court Judge,—sitting or retired —and
a scientist or group of scientists of high ranking and experience so as to
help a proper and fair adjudication of disputes relating to environment and
pollution.
The Supreme Court further held that technical matters—their scientific
and technical aspects—can be referred to expert bodies having judicial
and technical expertise. In this matter, the Supreme Court referred to the
appellate authority under the National Environment Appellate Authority
Act, 1997.

2.15 Revision
The State Government may at any time, either on its own or on an appli-
cation, call for records of any case where an order has been made by the
State Board under Sections 25, 26 and 27, for the purpose of satisfying
itself as to the legality of any such order. The State Government can pass
any order in relation to that after providing an opportunity of being
heard to the Board, or the person affected. The State Government shall
not revise any order if an appeal against the order lies to the “appellate
authority”.°? Revision is not a right guaranteed to the party but only a
power conferred on the State Government to keep an eye on the func-
tioning of the State Board.**

2.16 Furnishing of information to the State Board and others

When, due to an accident or other foreseen act or event, any poisonous,
noxious or polluting matter is discharged from an industry, operation
or process into a stream or well or on land which pollutes or is likely to
pollute water, the industry/unit is bound to inform the State Board or any
other prescribed authority about such discharge.** This duty to supply
information is mandatory and its non-compliance attracts punishment
under Section 42 of the Act.
If such discharge of poisonous, noxious or polluting matter pollutes
any stream, well or land, the State Board is empowered to take emer-
gency measures. Such measures include 1) removal of that matter and
disposal of it in an appropriate manner by the Board; 2) remedying or
mitigating any pollution; and 3) issuing order immediately restraining or
prohibiting person concerned from discharging any poisonous, noxious
or polluting matter into a stream or well or on land. The Board can also
undertake work of temporary character to restrain water pollution.”°
53. §. 29. See, World Saviors v. Union of India, (1998) 9 SCC 247.
54. Balkishan v. Union ofIndia, (1994) 3 SLJ 440 (CAT).
55. Bi $k:
56, 5,32:
 LAW [CHAP.
294 ENVIRONMENTAL

2.17 Power to move the court for restraining apprehended

pollution of water
Where there is an apprehension by the Board that the water in any
stream or well is likely to be polluted, the Board may make an applica-
tion to a Court of Metropolitan or Judicial Magistrate of the first class
for restraining the person who is likely to cause water pollution.”” The
court, on the receipt of such application, can make any order which it
deems fit. If the court makes an order to restrain any person from pol-
luting water in any stream or well, it may 1) direct the person to desist
from causing pollution and to remove from such stream or well such
matter; and 2) if the person does not remove such matter, it authorise
the Board to remove and dispose of the matter. If the matter is removed
by the Board, the expenses so incurred can be recovered from the person
concerned as arrears of land revenue or of public demands.
ion&
CASE PILOT
Co ec Pollution®’, it was declared by the Delhi High Court
that if the treatm ent plant was not erected as per the “consent order”,
a restraint order can be passed against the petitioners restraining them
from discharging their effluents in the stream and thereby arrest causing
pollution of the stream. For non-erection of treatment plant the Board has
to launch prosecution against the industry under Section 41 of the Act.

2.18 Power to give directions

The Central Government and the Boards have been empowered, in the
exercise of their powers in the performance of their functions under the
Act, to issue any direction to any person, officer or authority and he is
bound to comply with it. Non-compliance with such direction is punish-
able under sub-section (2) of Section 41 with imprisonment for a term
which shall not be less than one year and six months and it may extend
to six years and be accompanied with fine. In case failure continues, one
can be punished with additional fine which may extend to #5000 for
every day during which the failure continues.
If the failure continues up to one year after the date of conviction, the
offender shall be punishable with imprisonment for a term which shall
not be less than two years and can extend to seven years.
Power to giving directions issued by the Central Government or the
Board includes
57. S. 33. See, Pondicherry Papers Ltd. v. Central Board for Prevention & Control of
Water Pollution, Cri MP No. 4662 & 4663, order dt. 21-3-1980 (Mad). In this case,
the court held that based on the doctrines of implied powers and strict enforce-
ment of public welfare legislation, the courts have broad powers to fashion injunctive
relief, under S. 33, Water Act and to remove the pollution or prevent it.
58. AIR 1986 Del 152.
9] WATER POLLUTION AND THE LAW 295

1. to close, prohibit or regulate any industry, operation or process; or

2. to stop or regulate the supply of electricity, water or any other
service.
In Bhavani River-Sakthi Sugars Ltd., re°®, the Tamil Nadu Pollution
Control Board issued directions for proper storage of effluents and their
proper treatment and disposal in a lagoon under Section 33-A. Despite
enough time given to comply with the directions, no remedial steps were
taken by the industry. These directions were not properly complied with.
Therefore, direction for closure were issued by the Board which were
upheld by the Supreme Court.
In M.C. Mehta v. Kamal Nath®°, the Supreme Court also observed
that “pollution fine” and “exemplary damages” can also be imposed on
the erring industry —in this case a motel. The court declared:
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 (compensation) for restoration of the environ-
ment and ecology. He has also to pay damages to those who have suffered
loss on account of the act of the offender. The powers of the Supreme Court
under Article 32 are not restricted and it can award damages in a PIL or a
writ petition as has been held in a series of decisions. 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. Unfortunately, notice for exemplary damages was
not issued to M/s Span Motel although it ought to have been issued. The
considerations for which ‘fine’ can be imposed upon a person guilty of com-
mitting an offence are different from those on the basis of which exemplary
damages can be awarded. While withdrawing the notice for payment of pol-
lution fine, a fresh notice is directed to be issued to M/s Span Motel to show
cause why in addition to damages, exemplary damages be not awarded for
having committed the acts set out and detailed in the main judgment. This
notice shall be returnable within six weeks. This question shall be heard at
the time of quantification of damages under the main judgment.
A pollution fine of 10,000 on each of all the erring tanneries was
imposed in the famous case of Vellore Citizens’ Welfare Forum v. Union
of India®! which was to be deposited in the “Environment Protection

59. (1998) 2 SCC 6or: AIR 1988 SC 2059; also see, M.C. Mehta v. Kamal Nath, (2000)
6 SCC 213.
60. (2000) 6 SCC 213; pollution fine was also imposed by the Supreme Court in M.C.
Mehta v. Union ofIndia, (1998) 9 SCC 448 on tanneries of Calcutta as they failed to
shift and install treatment plants even after giving clear undertaking on that behalf
to the Supreme Court.
61. (1996) 5 SCC 647; similar fine was also imposed by the Supreme Court in Indian
Council for Enviro-Legal Action v. Union ofIndia, (1996) 3 SCC 212. In Stella Silks
Ltd. v. State of Karnataka, AIR 2001 Kar 219, the High Court refused to issue a writ
of certiorari where directives were issued by the Board under S. 33-A to close down
the industry for not complying with the directions of the consent order.
296 ENVIRONMENTAL LAW [CHAP.

Fund” which was to be utilised for compensating the affected persons

and for restoring the damaged environment. It was imposed by the court
in the exercise of its powers under Article 32 of the Constitution.
The Supreme Court, in M.C. Mehta v. Union of India® (Calcutta
Tanneries’ matter), held that since Calcutta tanneries were operating in
violation of the mandatory provisions of the Water Act and Environment
(Protection) Act, directions of the Board for unconditional closure of
tanneries, relocation, payment of compensation by them for reversing
the damage and for rights and benefits to be made available to their
workmen was right. The Green Bench of the Calcutta High Court was
directed to monitor the compliance.
In Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars
Protection Assn.®, the Supreme Court, upholding the orders of the Tamil
Nadu High Court, approved the amount of fine levied on the owners of
the dyeing factory to clean the bed of Noyyal river and the Orathupalayam
dam. The amount of cleaning was estimated as $12,50,00,000. This also
included the desilting operation of the dam. The court asked them to pay
=24,79,98,548 to repair the loss to the ecology of area. The untreated
effluent of the textile industry caused great loss to the environment and
ecology of the area. It also caused widespread damage to agriculture and
agricultural land of that area. The industries were also directed to install
the treatment plants.

2.19 Funds, accounts and audit

Chapter VI of the Act [Ss. 36-40] deals with the funds, accounts and
audit of the Board.

2.20 Central Board

The Central Government may, after due appropriation by Parliament by
law in this behalf, make contribution to the Central Board to enable it to
perform its function.“
The Central Board shall also have its own funds which may be raised
through gifts, grants, donations, benefactions, fees or otherwise. The
Central Board shall expend money out of the grant given by the Central
Government and its own raised money.*
The Central Board may also borrow money from any source by
way of loans or issue of bonds, debentures or such other instruments.

2.(1997) 2 SCC att.

3. (2009) 9 SCC 737.
9] WATER POLLUTION AND THE LAW 297

For this purpose, the Board must seek prior permission of the Central
Government.°°
.

2.21 State Boards

The State Government may, after due appropriation made by the legis-
lature, make contribution to the SPCB each year to enable the Board to
perform its functions under the Act.°®’
The State may also raise funds and may accept gifts, grants, dona-
tions, benefactions, fees, etc. It may also, with the consent of the State
Government, borrow money from any source by way of loans, or issue of
bonds, debentures or such other instrument® as it may deem fit for the
performance of its functions.

2.22 Budget
The Central Board and the State Boards shall prepare their budgets of
each financial year next ensuing, showing the estimated receipts and
expenditure and the copies of the same shall be sent to the Central
Government or the State Government as the case may be.®
The Central Board and the State Boards are duty-bound to prepare an
annual report giving full account of their activities during the previous
financial year, and the Central Board shall send the same to the Central
Government who shall present it to both Houses of Parliament within
nine months from the last date of the previous financial year.
Similarly, every State Board shall forward to the State Government its
annual report which shall be laid before the State Legislature within a
period of nine months from the last date of the previous financial year.”

2.23 Accounts and audit

The Act prescribes that every Board shall maintain proper accounts,
records and prepare an annual statement of accounts in a prescribed
form. Such accounts shall be audited by an auditor duly qualified to act
as an auditor of a company under Section 226, Companies Act, 1956. The
Central Government shall appoint an auditor for the Central Board and
the State Governments for their respective State Boards who will audit
the accounts of the Central Board and the State Boards respectively. The
said auditors shall be appointed by the Central Government or, as the

66. S. 37-A.
G7. 95,45.
68.S. 37-A.
69. S. 38.
70. S. 39.
 298 ENVIRONMENTAL LAW [CHAP.

case may be, by the State Government on the advice of the Controller
and the Auditor General of India. Such appointed auditors shall send an
audited copy of the accounts to the Central Government or, as the case
may be, to the State Government. On receipt of the auditor’s report, the
Central Government shall cause the same to be laid before both Houses
of Parliament; and the State Government shall cause it to be laid before
the State Legislature.’!

TABLE 1 Penalties: as per Section 41

Non-compliance with the provisions Penalties

Failure to comply with directions under Imprisonment of three months or with fine up to = 10,000 or with
Section 20, /.e. non-compliance with both. In case the failure continues, an additional fine up to =5000
directions of the Board. [S. 20] for every day during which failure continues. [S. 41(1)]
Non-compliance with the orders issued by
the court to restrain a person. [S. 33(3)]
Non-compliance with the directions
Punishment of imprisonment for a term which shall not be less than
issued by the Board including the
one year and six months but which may extend to six years.
direction to close, prohibit or regulate any
—_In case failure continues, an additional fine which may extend to
industry, operation, or process. [S.33-A]
5000 for every day during which the failure continues. [S. 41(2)]
Ifthe failure continues beyond a period of one year after first
conviction, imprisonment for a term which shall not be less than
two years but which may be extended to seven years and with fine.
setters 2 at 07 soree addy hoa [S.ee?
41(3)]
hieoN leygrg’) of hoe sesy Ininnead
42. Penalty for certain acts.—(1) Whoever—
(a) destroys, pulls down, removes, injures or defaces any pillar, post
or stake fixed in the ground or any notice or other matter put up,
inscribed or placed, by or under the authority of the Board, or
obstructs any person acting under the orders or directions of the
Board from exercising his powers and performing his functions under
this Act, or
damages any work or property belonging to the Board, or
fails to furnish to any officer or other employee of the Board any
information required by him for the purpose of this Act, or
fails to intimate the occurrence of any accident or other unforeseen
act or event under Section 31 to the Board and other authorities or
agencies as required by that section, or
in giving any information which he is required to give under this Act,
knowingly or wilfully makes a statement which is false in any mate-
rial particular, or
(g) for the purpose of obtaining any consent under Section 25 or
Section 26, knowingly or wilfully makes a statement which
is false in
any material particular,
shall be punishable with imprisonment for a term which
may extend to three
months or with fine which may extend to ten thousand
rupees or with both.
TA SAO.
9| WATER POLLUTION AND THE LAW 299

43. Penalty for contravention of provisions of Section 24.— Whoever

contravenes the provisions, of Section 24 shall be punishable with impris-
onment for a term which shall not be less than one year and six months but
which may extend to six years and with fine.
Section 24 deals with the prohibition on use of stream or well for the
disposal of polluting matter.
44. Penalty for contravention of Section 25 or Section 26.— Whoever
contravenes the provisions of Section 25 or Section 26 shall be punishable
with imprisonment for a term which shall not be less than one year and six
months but which may extend to six years and with fine.
Section 25 provides for “prior consent of the Pollution Control Board to
establish any industry, operation or process, or treatment and disposal
system or to make discharge of sewage”.
If a person has been convicted of any offence under Sections 43 and
44, and is again found guilty of the same offence, he, on the second and
every subsequent conviction, shall be punished for a term which shall not
be less than two years but may extend to seven years and with fine. But
such cognizance can be taken of an offence which was committed within
two years from the commission of the second offence.”

2.24 Residuary penalty clause

If no penalty has been provided for the contravention or failure to comply
with any provision of the Act, the person shall be punished with impris-
onment which may extend to three months or with fine up to 10,000
or with both. In case of continuing contravention or failure, with an
additional fine which may extend to #5000 for every day during which
such contravention or failure continues after conviction for the first con-
travention or failure.
Penalty provisions have been discussed by the Supreme Court in M.C.
Mehta v. Kamal Nath”, and it was also observed that pollution fine for
exemplary damage can also be imposed by the court if the entire proce-
dure is followed in the case and an opportunity of being heard is given
to the offender.
The Supreme Court has made it clear that pollution fine may be
imposed and court can impose it while exercising its power under
Article 32. But the court in this case imposed “exemplary damages” of
% 10,00,000 as it was “in the public interest as well as in the interest of
justice”. This would also serve as a deterrent to others.” The levy of
exemplary damages of %10,00,000 was fixed by the court in view of the
“undertaking given by them to bear a fair share of the project cost of
72.8. 45. Bhavani River-Sakthi Sugars Ltd., re, (1998) 2 SCC 6or.
73. (2000) 6 SCC 213: AIR 2000 SC 1997.
74. M.C. Mehta v. Kamal Nath, (2002) 3 SCC 653: AIR 2002 SC 1515.
 [CHAP.
300 ENVIRONMENTAL LAW

ecological restoration which would be quite separate from their liability

for exemplary damages”.

2.25 Publication of the names of offenders

One of the deterrent measures the court is empowered to adopt is to
publish the offender’s name, place of residence, the offence and penalty
imposed at the offender’s expense in newspapers or in any other manner.
Provided if any person is convicted for the second time of an offence
under this Act.
The expenses of such publication shall be deemed to be a part of the
cost attending the conviction and shall be recoverable in the same man-
ner as a fine.”

2:26 Offences by companies

The Act has introduced the doctrine of vicarious liability and joint liabil-
ee ne

ity under Sections 47 and48 which are based on the maxim of qui facit
eee
alee

per aliu facit m,

per se, orrespondeat superior.
Section 47 provides that where an offence has been committed by a
company, every person who at the time of the offence was in charge and
was responsible to the company for the conduct of the business of the
company, shall be deemed to be guilty of the offence and shall be liable
to be proceeded against and punished accordingly.
If the offence is committed by the company, any director, manager,
partner in a firm, secretary, other officer of the company shall also be
deemed to be guilty of the offence and punished, if it can be proved that
the offence was committed with 1) his consent or connivance, or 2) is
attributable to any neglect on his part.
No person shall be held guilty if he can prove that the offence was
committed 1) without his knowledge, or 2) that he exercised due dili-
gence to prevent the commission of such offence.
The Supreme Court of India in U.P. Pollution Control Board v. Modi
Distillery’”® declared that Section 47, which deals with the offences
by companies, makes it abundantly clear that the Chairman, Vice-
Chairman, Managing Director and members of the Board of directors of
M/s Modi Distillery could be prosecuted for causing water pollution and
discharging noxious and polluted trade effluents into river Kali without
the consent of the Board. It was so because they were “in charge of and
responsible to the company”. The Supreme Court remanded the case to
the CJM to proceed with the trial expeditiously.

75. S. 46.
76. (1987) 3 SCC 684: 1987 SCC (Cri) 632: AIR 1988 SC 1128.
9] WATER POLLUTION AND THE LAW 301

In Nalin Thakor v. State of Gujarat’’, the Supreme Court made it

clear that unless an offence is committed by a company with consent
or connivance or attributable to any negligence on their part, the direc-
tor, Managing Director, etc., cannot be held vicariously liable under
Section 47(1), Water Act.

2.27 Delay no excuse to waive responsibility

Similarly in U.P. Pollution Control Board v. Mohan Meakins Ltd.’*, the
Supreme Court observed that the directors, manager and secretary of
a company cannot be absolved of the responsibility for the offence of
pollution as provided under Section 47 of the Act. The courts cannot
afford to deal lightly with cases involving pollution of air and water. The
courts should not deal with the prosecution for offences under the Act in
a casual or routine manner. In this case, 17 years has elapsed from the
institution of the complaint. Still the court ordered to proceed with the
trial with accelerated velocity. Unreasonable delay was not accepted as a
ground for not proceeding against the directors, etc.
Similarly, the Calcutta High Court in K.K. Nandi v. Amitabha
Banerjee”? ruled that a person designated as manager of a company is
prima facie liable under Section 47 of the Act. But whether a person so
designated as manager was in fact in total charge of the affairs of the
factory and whether he had knowledge of the violation of the Act were
questions of fact which could be considered by the trial court only.

2.28 Offences by government departments

Where an offence has been committed under the Act by any department
of the government, the Head of the Department shall be deemed to be
guilty of the offence and shall be liable and punished accordingly. But he
can be absolved of his liability if he can prove that
1. the offence was committed without his knowledge, or
2. that he exercised all due diligence to prevent the commission of
such offence.*°

77. (2003) 12 SCC 461: 2004 SCC (Cri) Supp 471.

78. (2000) 3 SCC 745: AIR 2000 SC 1456.
79. 1983 Cri LJ 1479 (Cal). In Mahmud Ali v. State of Bihar, AIR 1986 Pat 133 the court
allowed the State to implead the Managing Director of the company when it was
proved that he was responsible for violation of the Act. In this case the court relied
on S. 319 CrPC, 1973 which authorises the court to take cognizance of a person who
was not included in the original complaint but when evidence comes before the court
of his culpability during the trial.
80.8. 48.
302 ENVIRONMENTAL LAW [CHAP.

2.29 Cognizance of the offence and the court

Only a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try offences punishable under this Act. Such court can take cogni-
zance of the offence, if the complaint is made by
(a) a Board or any officer authorised in this behalf; or
(b) any person who has given notice of not less than 60 days of his inten-
tion to make a complaint to the Board or officer authorised for it.
None other than those mentioned above are authorised to file a case
under this Act. If a complaint has been filed by the secretary on behalf
of State Board against a factory for contravening provisions of the Act as
the Board could not resolve to file it, it would not be entertained by the
court of law.?*!
In Gujarat Pollution Control Board v. Nicosulf Industries @ Export
(P) Ltd.*?, the Supreme Court clarified that the complaint must be filed
by the authorised person only. The complaint filed by the Assistant
Environmental Engineer on behalf of the SPCB is not an “authorisation”
within the meaning of Section 49 of the Act.
Where a complaint is made by any person under category (b), the
Board shall, on demand of such person, make available all the relevant
reports in its possession to that person.*? The Board can refuse any such
report if the same is, in its opinion, against the public interest.
The Judicial Magistrate or the Metropolitan Magistrate can pass a
sentence of imprisonment for a term not exceeding two years or of fine
not exceeding 2000 on any person convicted under the Act.
Section 58 of the Act bars the jurisdiction of civil courts to entertain
any suit or proceeding under it. It provides:
58. Bar of Jurisdiction.—No civil court shall have jurisdiction to entertain
any suit or proceeding in respect of any matter which an appellate authority
constituted under this Act is empowered by or under this Act to determine,
and no injunction shall be granted by any court or other authority in respect
of any action taken or to be taken in pursuance of any power conferred by
or under this Act.
The Andhra Pradesh High Court, while exploring the true scope of
Section 58, has very aptly observed in Sreenivasa Distilleries vy. S.R.
Thyagarajan**:
An appeal is provided against the order under S. 28 and S. 58 bars the juris-
diction of the Civil Court to entertain any suit or proceeding against an order
passed by the appellate authority. Section 58 enacts two prohibitions. Firstly,

81. Morena Mandal Sahakari Sakhar Karkhana Ltd. v. M.P. Board for
Prevention &
Control of Water Pollution, 1993 MPL] 487.
82. (2009) 2 SCC 171: (2009) 1 SCC (Cri) 700.
83.58. 49.
84. AIR 1986 AP 328, 3209.
9| WATER POLLUTION AND THE LAW 303

not to entertain any suit or proceeding in respect of any matter which the
appellate authority constituted under the Act is empowered to determine.
Secondly, no injunction shall be granted in respect of any action taken by
any authority under the Act in pursuance of the provisions of the Act. This
is the only provision barring the jurisdiction of a Civil Court. The section is
intended to preserve the statutory protection given to the Boards untouched
by civil actions. Now, the present action is only preventing the defendant
from polluting water. But this section is not directed to annul any orders
passed by the authority constituted under this Act. Now, it is admitted that
no orders are passed under the Act, and, therefore, any order passed by the
Civil Court will not take away the jurisdiction of the authorities constituted
under the Act. Hence, I am of the view that S. 58 does not prohibit the juris-
diction of a Civil Court to entertain any suit or proceeding, restraining the
defendant to cause pollution.
One of the important cases in the history of environmental pollution is
Rural Litigation and Entitlement Kendra v. State of U.P.*°. The case was
filed by a voluntary organisation against illegal mining operations. These
mining operations caused ecological imbalance as well as pollution of
rivers and streams of Dehradun and Mussoorie area. The Doon Valley
has been an exquisite region bounded by the Himalayan and Shivalik
ranges and Ganga and Yamuna rivers. The careless mining operations in
limestone belt affected the flow of water of Song, Baldi, Rispana, Kaimte
and Bhitarli streams adversely. Some of them were blocked. Thus, it
had disturbed the natural water system and the supply of water both
for drinking and irrigation had substantially gone down. The question
involved in this case was: Whether deposits should be exploited at the
cost of ecological and environmental considerations?
Ranganath Mishra J delivering the judgment declared:
This is the first case of its kind in the country involving issues relating to
environmental and ecological balance and the questions arising for consid-
eration are of grave nature and significance not only to the people residing
in the Mussoorie hill ranges forming part of the Himalayas but also in their
implications to the welfare of the generality of people living in the country.
In this area, r05 mining lessees were found working. The operation of
these limestone mines had an adverse impact on the environment. The
mining operations in these areas led to cutting down of the forest and
allowed the waste to roll down or carried down by rainwater to lower
levels—the naturally formed streams have been blocked—disturbing
the natural water system and supply of water needed for domestic and
agricultural purposes—thus, causing ecological imbalance. The court
expressed its apprehension that the greenery of India may perish and the
Thar desert may expand its limits. Thus, the court directed half of the
mines to stop working immediately.

85. 1986 Supp SCC 517: AIR 1987 SC 359.

 304. ENVIRONMENTAL LAW |CHAP.

The court was of the opinion that it was for the government and the
nation and not for the court to decide whether the deposits should be
exploited at the cost of ecological and environmental considerations or
industrial requirement should be otherwise satisfied. The evil conse-
quences of the mining operations would last long and repairs would be
impossible. It was advised that the government must come forward with
a definite plan to keep the natural setting of the area intact. The natural
resources have to be tapped for the purpose of social development and it
has to be done with requisite attention and care so that the ecology and
environment are not affected in a serious way and there may not be any
depletion of water resources.
The Supreme Court directed the State of U.P. to pay ¥10,000 to the
Kendra as costs. In fact it was felt that if voluntary organisations like
this Kendra of Dehradun come forward to protect and improve the envi-
ronment, they should be encouraged and honoured because such a case
does not involve personal benefit but the welfare of the people of the
area—the larger benefit—and secondly, it arouses public awareness
which is the need of the hour.
The State has also been directed by the Constitution to protect and
improve the environment. Similarly, the Constitution has also made it
a fundamental duty of every citizen under Article 51-A(g) “to protect
and improve the natural environment including forests, lakes, rivers and
wildlife, and to have compassion for living creatures”. All this is a long
and pitched battle of law to save mankind from the homicidal environ-
mental pollution, but this is not the end of the battle. The law is a paper
tiger unless we educate the masses, make them aware of the risk of pol-
lution. “Public awareness” against the inhuman crime of pollution is the
only arm to control wild growth and lethal technology. In the words of
Krishna lyer J:
I must stress that law and litigation cannot guarantee justice unless
well-informed citizens and militantly mobilised public opinion exist. This
condition calls for legal entitlement to information from public sources, not
only to legislators through interpellations but to all Indians public minded
enough to do demand it for public purposes.
60. Overriding effect.—The provisions of this Act shall have effect not-
withstanding anything inconsistent therewith contained in any enactment
other than this Act.
By virtue of this “non obstante” clause, the provisions of the
Water
(Prevention and Control of Pollution) Act, 1974 shall have
overriding
effect on anything contained in any other enactment.
61. Power of Central Government to supersede the Cent
ral Board and
Joint Boards.—(t) If at any time the Central Governme
nt is of opinion—
 WATER POLLUTION AND THE LAW 305

(a) that the Central Board or any Joint Board has persistently made
default in the performance of the functions imposed on it by or under
this Act; or
(b) that circumstances exist which render it necessary in the public inter-
est so to do,
the Central Government may, by notification in the Official Gazette, super-
sede the Central Board or such Joint Board, as the case may be, for such
period, not exceeding one year, as may be specified in the notification:
Provided that before issuing a notification under this sub-section for the
reasons mentioned in clause (a), the Central Government shall give a rea-
sonable opportunity to the Central Board or such Joint Board, as the case
may be, to show cause why it should not be superseded and shall consider the
explanations and objections if any, of the Central Board or such Joint Board,
as the case may be.
(2) Upon the publication of a notification under sub-section (1) supersed-
ing the Central Board or any Joint Board,—
(a) all the members shall, as from the date of supersession, vacate their
offices as such;
(b) all the powers, functions and duties which may, by or under this
Act, be exercised, performed or discharged by the Central Board or
such Joint Board shall, until the Central Board or the Joint Board, as
the case may be, is reconstituted under sub-section (3) be exercised,
performed or discharged by such person or persons as the Central
Government may direct;
(c) all property owned or controlled by the Central Board or such Joint
Board shall, until the Central Board or the Joint Board, as the case
may be, is reconstituted under sub-section (3) vest in the Central
Government.
(3) On the expiration of the period of supersession specified in the notifica-
tion issued under sub-section (1), the Central Government may—
(a) extend the period of supersession for such further term, not exceeding
six months, as it may consider necessary; or
(b) reconstitute the Central Board or the Joint Board, as the case may
be, by fresh nomination or appointment, as the case may be, and
in such case any person who vacated his office under clause (a) of
sub-section (2) shall not be deemed disqualified for nomination or
appointment:
Provided that the Central Government may at any time before the expi-
ration of the period of supersession, whether originally specified under
sub-section (1) or as extended under this sub-section, take action under
clause (b) of this sub-section.
62. Powers of State Government to supersede State Board.—(x) If at any
time the State Government is of opinion—
(a) that the State Board has persistently made default in the performance
of the functions imposed on it by or under this Act; or
(b) that circumstances exist which render it necessary in the public inter-
est so to do,
306 ENVIRONMENTAL LAW [CHAP.

the State Government may, by notification in the Official Gazette, supersede

the State Board for such period, not exceeding one year, as may be specified
in the notification:
Provided that before issuing a notification under this sub-section for
the reasons mentioned in clause (a), the State Government shall give a rea-
sonable opportunity to the State Board to show cause why it should not be
superseded and shall consider the explanations and objections, if any, of the
State Board.
(2) Upon the publication of a notification under sub-section (1) supersed-
ing the State Board, the provisions of sub-sections (2) and (3) of Section 61
shall apply in relation to the supersession of the State Board as they apply
in relation to the supersession of the Central Board or a Joint Board by the
Central Government.
63. Power of Central Government to make rules.—(1) The Central
Government may, simultaneously with the constitution of the Central Board,
make rules in respect of the matters specified in sub-section (2):
Provided that when the Central Board has been constituted, no such rule
shall be made, varied, amended or repealed without consulting the Board.
(2) In particular, and without prejudice to the generality of the forego-
ing power, such rules may provide for all or any of the following matters,
namely:—
(a) the terms and conditions of service of the members (other than
the chairman and member-secretary) of the Central Board under
sub-section (8) of Section 5;
(b) the intervals and the time and place at which meetings of the Central
Board or of any committee thereof constituted under this Act, shall
be held and the procedure to be followed at such meetings, including
the quorum necessary for the transaction of business under Section 8,
and under sub-section (2) of Section 9;
(c) the fees and allowances to be paid to such members of a commit-
tee of the Central Board as are not members of the Board under
sub-section (3) of Section 9;
(d) the manner in which and the purposes for which persons may be asso-
ciated with the Central Board under sub-section (1) of Section ro and
the fees and allowances payable to such persons;
(e) the terms and conditions of service of the chairman and the mem-
ber-secretary of the Central Board under sub-section (9) of Section 5
and under sub-section (1) of Section 12;
(f) conditions subject to which a person may be appointed as a consulting
engineer to the Central Board under sub-section (4) of Section 12;
(g) the powers and duties to be exercised and performed by the chairman
and the member-secretary of the Central Board;
(h)
(7) [***]
(7) the form of the report of the Central Board analyst under sub-section
(1)
of Section 22;
(k) the form of the report of the Government analyst under sub-s
ection (3)
of Section 22;
9] WATER POLLUTION AND THE LAW 307

(1) the form in which and the time within which the budget of the Central
Board may be prepared and forwarded to the Central Government
under Section 38;
(/1) the form in which the annual report of the Central Board may be pre-
pared under Section 39;
(m) the form in which the accounts of the Central Board may be main-
tained under Section 40;
(mm) the manner in which notice of intention to make a complaint shall be
given to the Central Board or officer authorised by it under Section 49;
(2) any other matter relating to the Central Board, including the powers
and functions of that Board in relation to Union Territories;
(o) any other matter which has to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament
while it is in session for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before the expiry
of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.
64. Power of State Government to make rules. — (1) The State Government
may, simultaneously with the constitution of the State Board, make rules to
carry out the purposes of this Act, in respect of matters not falling within the
purview of Section 63:
Provided that when the State Board has been constituted, no such rule
shall be made, varied, amended or repealed without consulting that Board.
(2) In particular, and without prejudice to the generality of the forego-
ing power, such rules may provide for all or any of the following matters,
namely—
(a) the terms and conditions of service of the members (other than
the chairman and the member-secretary) of the State Board under
sub-section (8) of Section 5;
(b) the time and place of meetings of the State Board or of any com-
mittee of that Board constituted under this Act and the procedure to
be followed at such meeting, including the quorum necessary for the
transaction of business under Section 8 and under sub-section (2) of
Section 9;
(c) the fees and allowances to be paid to such members of a committee of
the State Board as are not members of the Board under sub-section (3)
of Section 9;
(d) the manner in which and the purposes for which persons may be asso-
ciated with the State Board under sub-section (1) of Section ro and the
fees and allowances payable to such persons;
(e) the terms and conditions of service of the chairman and the mem-
ber-secretary of the State Board under sub-section (9) of Section 5 and
under sub-section (1) of Section 12;
 308 ENVIRONMENTAL LAW

(f) the conditions subject to which a person may be appointed asacon-

sulting engineer to the State Board under sub-section (4) of Section kgs
(g) the powers and duties to be exercised and discharged by the chairman
and the member-secretary of the State Board;
(b) the form of the notice referred to in Section 21;
(i) the form of the report of the State Board analyst under sub-section (1)
of Section 22;
(j) the form of the report of the Government analyst under sub-section (3)
of Section 22;
(k) the form of application for the consent of the State Board under
sub-section (2) of Section 25, and the particulars it may contain;
(1) the manner in which inquiry under sub-section (3) of Section 25 may
be made in respect of an application for obtaining consent of the State
Board and the matters to be taken into account in granting or refusing
such consent;
(m) the form and manner in which appeals may be filed, the fees payable
in respect of such appeals and the procedure to be followed by the
appellate authority in disposing of the appeals under sub-section (3)
of Section 28;
(2) the form in which and the time within which the budget of the State
Board may be prepared and forwarded to the State Government under
Section 38;
(nm) the form in which the annual report of the State Board may be pre-
pared under Section 39;
(0) the form in which the accounts of the State Board may be maintained
under sub-section (1) of Section 40;
(oo) the manner in which notice of intention to make a complaint shall be
given to the State Board or officer authorised by it under Section 49;
(p) any other matter which has to be, or may be, prescribed.
It is to be noted that these rules will have prospective effect and no rule
made under this section can have retrospective effect.’
The Supreme Court in K.C.P. Sugar & Industries Corpn. Ltd. v.
Govt. of A.P.8’ upheld the powers of the State Government to issue
order to enhance payment to arrack distilleries that commissioned efflu-
ent treatment plants, subject to production of certification to that effect
from the SPCB. It was resolved that the purpose of such order appeared
to be that said treatment plants in industries must be functional one
and that achieving required parameters of purity would entitle them to
enhanced price.

86. Baidyanath Bandhopadhyay v. Union of India, (1994)

3 SL] 378 (CAT).
87. (2005) 11 SCC 544.
 CHAPTER 10
Air (Prevention and Control
of Pollution) Act, 1981!

This Act was passed by the Indian Parliament in the exercise of its powers
conferred under Article 253 of the Constitution.* The aims and objects
of the Act provide:
Whereas decisions were taken at the United Nations Conference on Human
Environment held in Stockholm in June 1972, in which India participated,
to take appropriate steps for the preservation of the natural resources of the
earth which, among other things, include the preservation of the quality of
air and control of air pollution.
And whereas it is considered necessary to implement the decisions afore-
said in so far as they relate to the preservation of the quality of air and con-
trol of air pollution.*
The Act aims to achieve the following goals:
1. Provide for the prevention, control and abatement of air pollution.
2. Establishment of Boards with a view to carry out the abovemen-
tioned purpose.
3. Confer on and assign to such Boards powers and functions relating
to prevention, control and abatement of air pollution and other
matters connected thereto.
4. Lay down the standards to maintain the quality of air.
This Act is applicable to the whole of India.*

1. Received the assent of the President on 29-3-1981, published in the Gaz. of India,
Extra., Pt. II, S. 1, dt. 30-3-1981, 55-80 [C]|[P].
2. Arts253:
...Parliament has power to make any law for the whole or any part of the ter-
ritory of India for implementing any treaty, agreement or convention with any
other country or countries or any decision made at any international conference,
association or other body.
3. Preamble.
4. S. 1; the Act came into force on 16-5-1981.
 310 ENVIRONMENTAL LAW |CHAP.

The term “air pollution” means “the presence in the atmosphere of

any pollutant”> and “air pollutant” means
any solid, liquid or gaseous substance (including noise) present in the atmos-
phere in such concentration as may be or tend to be injurious to human
is ; e
beings or other living creatures or plants or property or environment.
Thus, air pollutants include smoke, soot, heat’, fly ash, suspended par-
ticulate matter (SPM)8, noise, radioactive substances’, vibrations", etc.
The above definition emphasises two things: 1) high concentration of
solid, liquid or gaseous substances, 2) which is injurious or likely to be
injurious to human beings, flora and fauna, property or environment.
Some small quantity of gases, SPM or vapour is tolerable or cannot be
designated as pollutants, unless and until the concentration of such thing
reaches such a volume that it becomes injurious. For example, sound at
low pitch is acceptable and liked, but sound at a very high pitch (known
as noise) is not acceptable and becomes a health hazard. The same is true
of other gases, liquids and solid substances. A small quantity of pollut-
ants usually does not affect human health adversely. Such quantity or
volume may be described as permissible/tolerable limit as nature also has
its self-purification mechanism. But if the volume or the quantity of the
pollutants is such which is deleterious/injurious to the health of human
beings, flora, fauna, etc., it becomes environmental pollution. In M.-C.
CASE PILOT Mehta v. Union
of India" (Taj Trapezium case), the court observed that
emission of sulphur dioxide from coke/coal using industries was causing
acid rain (sulphur dioxide when combined with moisture forms sulphuric
acid called acid rain) which had a corroding effect on the gleaming white
marble of the Taj Mahal. Therefore, 292 industries were ordered either
to close down or to switch to using gas.
Courts on various occasions have observed:
pollution being wrongful contamination of the environment which causes
material injury to the right of an individual, noise can well be regarded as
a pollutant, because it contaminates the environment, causes nuisance and
affects the health of a person... .!

¥. S. 2(0).
6. S. 2(a).
7. Krishna Gopal v. State of M.P., 1986 Cri LJ 396 (MP)
8. Ajeet Mehta v. State of Rajasthan, 1990 Cri LJ 1596 (Raj).
9. M.K. Sharma v. Bharat Electronics Ltd., (1987) 3 SCC 231: AIR
1987 SC 1792.
10. Shobana Ramasubramanyam vy. Chennai Metropolitan Developmen
t Authority,
AIR 2002 Mad 125.
:
11. (1997) 2 SCC 353: AIR 1997 SC 734.
12. Bijayananda Patra v. District Magistrate, Cuttack,
AIR 2000 Ori 70; also see,
Church of God (Full Gospel) in India v. K.K.R. Magestic
Colony Welfare Assn.
2000 SCC (Cri) 1350.
10] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 311

1. CENTRAL AND STATE BOARDS FOR THE

PREVENTION AND CONTROL OF AIR POLLUTION
Chapter II, which runs from Sections 3 to 15, provides for the constitu-
tion of a Board, qualifications of its members, terms and conditions of
their service, meetings, vacation of seats and temporary association of
persons with the Board, etc.
The Act envisages two types of Boards—one at the Centre and others
in the respective States.

1.1 Central Board

The Act provides that the Central Pollution Control Board (CPCB),
which was constituted under Section 3, Water (Prevention and Control
of Pollution) Act, 1974, shall also exercise the powers and functions of
the CPCB for the prevention and control of air pollution under this Act.!°
Thus, the powers have been delegated to the already existing Board and
no new board has been constituted for the precise purpose of prevention,
control and abatement of air pollution.
The Central Board shall also exercise the powers and perform the
functions of the State Boards in Union Territories; or it may delegate such
powers and functions to any person or body of persons as the Central
Government may specify.’*

1.2 State Boards

Where State Pollution Control Boards (SPCB) have been constituted
under the Water (Prevention and Control of Pollution) Act, 1974, such
State Boards shall also be deemed to be State Boards for the prevention
and control of air pollution, and shall also exercise all powers and per-
form the functions of State Boards for the prevention and control of air
pollution under this Act.’
In a State where a State Board has not been constituted under the Water
(Prevention and Control of Pollution) Act, 1974, the State Government
shall appoint, constitute a SPCB to exercise the powers conferred on, and
to perform the functions assigned to, the Board under the Act.'* Such
Board shall consist of the following persons:
(a) a Chairman, being a person having special knowledge or practical
experience in respect of matters relating to environmental protection,
to be nominated by the State Government:

dw
NnNANNWN
—_— ak
AW
312 ENVIRONMENTAL LAW [CHAP.

Provided that the Chairman may be either whole-time or part-time as

the State Government may think fit;
(b) such number of officials, not exceeding five, as the State Government
may think fit, to be nominated by the State Government to represent
that Government;
(c) such number of persons, not exceeding five, as the State Government
may think fit, to be nominated by the State Government from amongst
the members of the local authorities functioning within the State;
(d) such number of non-officials, not exceeding three, as the State
Government may think fit, to be nominated by the State Government
to represent the interests of agriculture, fishery or industry or trade or
labour or any other interest, which, in the opinion of the Government,
ought to be represented;
(e) two persons to represent the companies or corporations owned, con-
trolled or managed by the State Government, to be nominated by that
Government;
(f) a full-time member-secretary having such qualifications, knowledge
and experience of scientific, engineering or management aspects of
pollution control as may be prescribed, to be appointed by the State
Government:
Provided that the State Government shall ensure that not less than two of
the members are persons having special knowledge or practical experience
in respect of matters relating to the improvement of the quality of air or
the prevention, control or abatement of air pollution. [S. 5(2)]
Every State Board constituted under this Act shall be a body corporate
with the name specified by the State Government in the notification
issued under sub-section (1), having perpetual succession and a common
seal with power, subject to the provisions of this Act, to acquire and
dispose of property and to contract, and may by the said name sue or be
sued. [S. 5(3)]
Thus, the Board has been declared as a “legal person” as it can acquire
and dispose of property and may sue and be sued as the State Board.

1.3 Disqualification of members

Section 8 mentions the various disqualifications of the Board’s members.
It provides:
8. Disqualifications.—(1) No person shall be a member of a State Board
constituted under this Act, who—
(a) is, or at any time has been, adjudged insolvent, or
(b) is of unsound mind and has been so declared by a competent court, or
(c) is, or has been, convicted of an offence which, in the opinion of the
State Government, involves moral turpitude, or
(d) is, or at any time has been, convicted of an offence under this Act,
or
(e) has directly or indirectly, by himself or by any partner, any share
or interest in any firm or company carrying on the business of
To] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 313

manufacture, sale, or hire of machinery, industrial plant, control

equipment or any other apparatus for the improvement of the quality
of air or for the prevention, control or abatement of air pollution, or
(f) is a director or a secretary, manager or other salaried officer or
employee of any company or firm having any contract with the Board,
or with the Government constituting the Board or with a local author-
ity in the State, or with a company or corporation owned, controlled
or managed by the Government, for the carrying out of programmes
for the improvement of the quality of air or for the prevention, control
or abatement of air pollution, or
(g) has so abused, in the opinion of the State Government, his position as
a member, as to render his continuance on the State Board detrimental
to the interests of the general public.
(2) The State Government shall, by order in writing, remove any member
who is, or has become, subject to any disqualification mentioned above:
Provided that no order of removal shall be made by the State Government
under this section unless the member concerned has been given a reasonable
opportunity of showing cause against the same.
(3) A member who has been removed under this section shall not be eligi-
ble to continue to hold office until his successor enters upon his office, or, as
the case may be, for renomination as a member.
If a member becomes subject to any disqualification mentioned above,
his seat shall be vacated.!” It has also been made clear that a vacancy in
the Board will not invalidate acts or proceedings of a Board or any com-
mittee constituted by the Board.'®

1.4 Meeting of the Board

The Board shall meet at least once in every three months and shall
observe such rules of procedure in its meetings as provided under the Air
(Prevention and Control of Pollution) Rules, 1982.
The Chairman may also convene a meeting at any time he thinks fit
for an urgent work to be transacted.'”
Copies of the minutes of the meeting shall always be forwarded to the
Central Board and to the State Government.
The Board has also been empowered to constitute a committee con-
sisting wholly or partly of the members of the Board for any purpose/
purposes as it thinks fit. So constituted committee/committees shall fol-
low the prescribed rules for its transaction of business, and its mem-
bers shall be paid such fees and allowances for attending the meetings as
prescribed.*°

EOS.
18. S. 13; State of Manipur v. Chandam Manihar Singh, (1999) 7 SCC 503.
17. Ee.
Dees BS
 [CHAP.
314. ENVIRONMENTAL LAW

e assis-
A Board is also authorised to associate with any person whos
or for any
tance or association it may desire to perform its functions,
a right
such purpose as it thinks fit. Such associated member shall have
any
to vote at a meeting of the Board but shall not be a member for
es as
other purpose. He shall also be entitled to such fees and allowanc
prescribed in the rules.”
The Board has, further, been empowered to appoint such officers,
employees and qualified consultants for its efficient functioning. The
Board or its Chairman shall assign to them their duties and pay them
salaries, allowances or fees, as it/he thinks fit.’

1.5 Powers and functions of the Boards

Sections 16, 17 and 18 deal with the powers and functions of the Central
and State Boards.

1.6 Functions of the Central Board

Section 16 of the Act prescribes the following functions of the CPCB:
t. Main function of the Central Board shall be a) to improve the qual-
ity of air, and b) to prevent, control or abate air pollution in the
country.
2. Clause (2) of Section 16 prescribes the following 11 functions which
the Central Board may perform. The Central Board may
(a) advise the Central Government on any matter concerning the improve-
ment of the quality of air and the prevention, control or abatement of
air pollution;
(b) plan and cause to be executed a nationwide programme for the pre-
vention, control or abatement of air pollution;
(c) co-ordinate the activities of the State Boards and resolve disputes
among them;
(d) provide technical assistance and guidance to the State Boards, carry
out and sponsor investigations and research relating to problems of
air pollution and prevention, control or abatement of air pollution;
(dd) perform such of the functions of any State Board as may be specified
in an order made under sub-section (2) of Section 18;
(e) plan and organise the training of persons engaged or to be engaged in
programmes for the prevention, control or abatement of air pollution
on such terms and conditions as the Central Board may specify;
(f) organise through mass media a comprehensive programme regarding
the prevention, control or abatement of air pollution;
(g) collect, compile and publish technical and statistical data relating to
air pollution and the measures devised for its effective prevention,
 to] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 315

control or abatement and prepare manuals, codes or guides relating to

prevention, control or abatement of air pollution;
(4) lay down standards for the quality of air;
(1) collect and disseminate information in respect of matters relating to
air pollution;
(7) perform such other functions as may be prescribed.
3. The Central Board may also establish or recognise a laboratory
or laboratories to perform its functions and analyse air samples.
It is so because the report signed by the government analyst is of
evidentiary value.
4. The Central Board may also delegate its functions stated above,
generally or specially, to any of the committees appointed by it.
In the Taj Trapezium case?*, the Supreme Court observed that the main
function of the CPCB and the State Board is to improve the quality of air
and to prevent, control and abate air pollution in the country.

1.7 Central Board to give directions to the State Board

The Central Board shall always be bound by the directions issued by
the Central Government in writing. The Central Board or the State
Government can give directions in writing to the State Board which shall
be bound by such directions.”*

1.8 Power of the Central Government to give directions

Where the Central Government feels that a State Board has defaulted
in complying with the directions given by the Central Board and as a
result of which 1) a grave emergency has arisen; and 2) it is necessary
and expedient so to do in the public interest, the Central Government,
by order, can direct the Central Board to perform any of such functions
of the State Board in relation to such area, for such period and for such
purpose as provided in the order.
If any expense is incurred by the Central Board in performing such
functions of the State Board, as directed by the Central Government, the
Central Government can recover them from the person, with interest,
as arrears of land revenue or of public demand. Provided that the State
Board was empowered to recover such expenses from such a person. It
has also been clarified that if the Central Board has been directed by
the Central Government to perform functions of the State Board in a
specified area, the State Board will not be precluded from performing its
functions in another area of the State.*°
23. (1997) 2 SCC 353; also see, Animal Feeds Dairies and Chemicals Ltd. vy. Orissa State
(Prevention and Control of Pollution) Board, AIR 1995 Ori 84.
8
24. S. 18(1)(a) and (6).
25, Se 18(2), (3) & (4).
316 ENVIRONMENTAL LAW [CHAP.

1.9 Functions of the State Board

Section 17 of the Act provides ro functions to be performed by the SPCB.
They are:
(a) to plan a comprehensive programme for the prevention, control or
abatement of air pollution and to secure the execution thereof;
to advise the State Government on any matter concerning the preven-
tion, control or abatement relating to air pollution;
to collect and disseminate information relating to air pollution;
to collaborate with the Central Board in organising the training of per-
sons engaged or to be engaged in programmes relating to prevention,
control or abatement of air pollution and to organise mass-education
programme relating thereto;
to inspect, at all reasonable times, any control equipment, industrial
plant or manufacturing process and to give, by order, such directions
to such persons as it may consider necessary to take steps for the pre-
vention, control or abatement of air pollution;
to inspect air pollution control areas at such intervals as it may think
necessary, assess the quality of air therein and take steps for the pre-
vention, control or abatement of air pollution in such areas;
to lay down, in consultation with the Central Board and having
regard to the standards for the quality of air laid down by the Central
Board, standards for emission of air pollutants into the atmosphere
from industrial plants and automobiles or for the discharge of any air
pollutant into the atmosphere from any other source whatsoever not
being a ship or an aircraft:
Provided that different standards for emission may be laid down under
this clause for different industrial plants having regard to the quantity and
composition of emission of air pollutants into the atmosphere from such
industrial plants;
(h) to advise the State Government with respect to the suitability of any
premises or location for carrying on any industry which is likely to
cause air pollution;
(2) to perform such other functions as may be prescribed or as may, from
time to time, be entrusted to it by the Central Board or the State
Government;
(7) to do such other things and to perform such other acts as it may think
necessary for the proper discharge of its functions and generally for
the purpose of carrying into effect the purposes of this Act.
A State Board may establish or recognise a laboratory or laboratories
to enable the State Board to perform its functions under this section
efficiently.
ink. Muniswamy Gowda v. State of Karnataka**, the Karnataka
High Court ordered that the State Board is, under Section 18, to abide
by the order issued by the government which relates to Section 17, Air

26. AIR 1998 Kar 281.

10] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 317

(Prevention and Control of Pollution) Act, 1981. The State Government

cannot give directions to the State Board which have not been mentioned
under Section 17 of the Act and the Board is also not bound to carry out
such orders.
In this case, the State Government precluded the rice-mills from the
jurisdiction of the Air (Prevention and Control of Pollution) Act, 1981. A
rice-mill was causing air pollution from husk and dust production by the
operation of the mill. Residents of the nearby area filed a writ against the
State and the State Board, as the air pollution produced by the rice-mill
violated the right to life provided under Article 21 of the Constitution.
The court ordered for the closure of the mill and declared that the State
Government has no power to preclude any machinery/industry which
causes air pollution from the operation of the Act.
In Navin Chemicals Mfg. and Trading Co. Ltd. v. NOIDA?’, the
Supreme Court directed the Uttar Pradesh Pollution Control Board
(UPPCB) to inspect the site of alleged air pollution (industries) and to
take necessary action against the industries who were causing pollution
by grinding stones into powder.

1.10 Measures to prevent and control air pollution

Chapter IV (from Ss. 19-31-A) provides various measures which can be
adopted by the government and Boards to improve the quality of air and
prevent, control and abate air pollution. These measures can be studied
under the following headings, given below.

1.10.1 Power of the “State Government” to prevent and

control air pollution
The State Government has been empowered under Sections 19, 20, 28
and 29 to contain and control air pollution. These powers are stated
below.

1.10.2 Powers to declare air pollution control areas

Section 19 empowers the “State Government”, in consultation with the
State Board, to declare any area or areas whoa the State as air pollution
control area/areas for the purpose of this Act. Such declaration will be
made by a notification in the Official Gazette in such manner as may be
prescribed by the rules made under the Act.
_In Orissa:State (Prevention and Contrrol of Pollution) Board v. Orient
—Mills**, the rules were not framed under the Act to indicate the CASE PILOT

27. 1987 All LJ 13.

28. (2003) ro SCC 421: AIR 2003 SC 1966.
318 ENVIRONMENTAL LAW [CHAP.

manner in which air pollution control areas are declared, but areas were
declared in Official Gazette. The question involved was that whether
in the absence of rules, “pollution control area” notification would be
contrary to this Act. The Supreme Court held that merely by absence of
rules, the State would not be divested of its power to notify in Official
Gazette any area declaring it to be air pollution control area. The appeal
was allowed.

1.10.3 Other control measures in such areas

Sections 17 and 31-A of the Act empowers the State Board to issue
guidelines restricting operation of industrial stone crushing units within
prohibited prescribed battery limit. Further, the Board is authorised to
direct the industry to shift its location and on the failure of shifting, it
can direct under Section 31-A, for the closure of industry.*’
Such provision cannot be struck down even if they run contrary to
the provisions of the Environment (Protection) Act, 1986 as the Air
(Prevention and Control of Pollution) Act, 1981 is a “Special” Act
which must be given preference over a general Act like the Environment
(Protection) Act.
1. The State Government may also alter any such area by way of
extension or reduction, or declare a new air pollution control area,
but after consultation with the State Board.
2. The State Government may, after consultation with the State
Board, prohibit the use of such fuel which may cause or is likely
to cause air pollution in such area or part thereof for at least three
months.
3. Similarly, the State Government may also direct that no appliances
other than approved appliances shall be used on the premises situ-
ated in an air pollution control area.
4. The State Government may also prohibit the burning of such mate-
rial (other than fuel) which may or is likely to cause air pollution in
such pollution control area.
The above declarations shall be made after consultation with the State
Board and by a notification in the Official Gazette.
The whole of the Union Territories of Pondicherry and Chandigarh
were declared as air pollution control areas on 25 January 1988 and
2 February 1988 respectively under the above provisions.
In Animal Feeds Dairies and Chemicals Ltd. v. Orissa State
(Prevention and Control of Pollution) Board? (Orissa State Board), the
Orissa High Court made it clear that the State Government can declare a
29. Bihar State Pollution Control Board v. Hiranand Stone Works,
AIR 2005 Pat 62.
30. AIR 1995 Ori 84.
Io] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 319

pollution control area, and it is within the power of the State Government
to prohibit the use of fuel causing air pollution but the State Board can-
not issue such direction. Such powers can be exercised by the State Board
under Section 31-A only.
Similarly in M.C. Mehta v. Union of India*! (Oleum Gas Leakage
case), certain areas were also declared by the Central Government as CASE PILOT
pollution control areas in the exercise of the powers conferred under
Section 19 of the Act and the plant of Shriram Fertilizers was in this area
from which there was a leakage of oleum gas.
In a significant judgment, the Karnataka High Court declared*® that
when the Karnataka Air (Prevention and Control of Pollution) Rules,
1983 require the publication of the declaration under Section 19 in local
newspapers after publication in the Official Gazette simultaneously or
within a reasonable time, publication in local newspapers six months
after the publication in the Gazette amounted to non-compliance with
Rule 19.
The Calcutta High Court in Alloy Steel Rolling Mills vy. W.B. Pollution
Control Board’ (Alloy Steel Rolling Mills) made it clear that the court
will not interfere in the direction issued under Section 19, if they are
based on report of the Expert Committee and recommendations of the
National Board (backed by NEERI), and in the furtherance of pub-
lic interest. In this case the Board, by an order dated 23 March 2004,
directed the Steel and Iron industries to change over within four months
from the coal fired system to the cleaner fuel system of either oil or gas.
This order was challenged by the industry. But the court held that the
stringent standards specified by the State Board are within its power pro-
vided under Section 3(2), Environment (Protection) Rules 1986.

1.11 Power to give instructions for ensuring standards for

emission from “automobiles”
As per Section 20, one of the functions of the State Board under Section 17
is to lay down the standards for the emission of air pollutants from auto-
mobiles and ensure that the standards are complied with. In this regard,
the State Government is empowered to give such instructions as may be
deemed necessary to the authority in-charge of motor vehicles under the
Motor Vehicles Act, 1988 and such authority shall be bound to comply
with such instructions.**
31. (1986) 2 SCC 325: AIR 1987 SC 982.
32. Chaitanya Pulvarising Industry v. Karnataka State Pollution Control Board, AIR
1987 Kar 82.
33. AIR 2006 Cal 75.
34. Murali Purushothaman v. Union of India, AIR 1993 Ker 297; quoted in Santosh
Kumar Gupta v. Ministry of Environment, AIR 1998 MP 43; Rabin Mukherjee v.
State of W.B., AIR 1985 Cal 222.
 320 ENVIRONMENTAL LAW [CHAP.

Section 110, Motor Vehicles Act, 1988, under clause (1) empowers the
Central Government to make rules regarding 1) the emission of smoke,
visible vapour, sparks, ashes, grit, etc.; 2) the reduction of noise emitted
by vehicles; 3) the standards for emission of air pollutants, and others.
Similarly, Schedules I and III of the Environment (Protection) Act, 1986
have also laid down various parameters for various air pollutants includ-
ing noise; and Schedule IV declared the standards for emission of smoke,
vapour, grit, ashes, cinders, etc., from motor vehicles.
Such rules have been notified to achieve the object of reducing air pol-
lution in NCR from time to time and their validity has been upheld by
the Supreme Court on various occasion.*°

1.12 State air laboratory

Section 28 empowers the State Government to establish 1) one or more
State air laboratories, or 2) specify any laboratory/institute as State air
laboratory to carry out the functions entrusted by the Act. The govern-
ment must publish a notification in the Official Gazette to establish such
laboratories. It further provides:
28. State Air Laboratory.—(t) ...
(2) The State Government may, after consultation with the State Board,
make rules prescribing—
(a) the functions of the State Air Laboratory;
(b) the procedure for the submission to the said Laboratory of samples
of air or emission for analysis or tests, the form of the Laboratory’s
report thereon and the fees payable in respect of such report;
(c) such other matters as may be necessary or expedient to enable that
Laboratory to carry out its functions.

1.13 Power of the State Government to appoint

“government analyst”
Section 29 authorises the State Government to appoint a governme
nt
analyst for the purposes of analysis of samples of air or emissions in
the
laboratory. Such appointment shall be made after a notification
in the
Official Gazette mentioning the necessary qualifications.
Besides the powers mentioned above some other powers of
the State
Government are as follows:
1. Power to supersede the State Board. [S. 47]
2. Power to discharge the duties of the State Board in
the case of its
supersession. [S. 48]
3. Power to make rules under the Act. [S. 54]
35. Bharat Petroleum Corpn. Ltd. v. Sunil Bans
al, (2009) to SCC 446: AIR 2010 SC
Supp 175; M.C.Mehta v. Union of India, (1998) 6 SCC 63:
AIR 1998 SC 2963.
10] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 321

1.14 Powers of the State Board to prevent, control air pollution

In Delhi Transport Deptt., re**, the Supreme Court declared that the
Delhi State Government was under a constitutional obligation to control
pollution and, if necessary, by anticipating the causes of pollution and
curbing the same. Restrictions on the plying of old taxis, three-wheelers
and other vehicles in the city were imposed to keep the environment
pollution free.
The following are the powers provided under the Act to the State
Boards to prevent, control and abate air pollution.

1.15 Power to give permission to operate industrial plant in an

“air pollution control area”
1. Every industry, plant or operation in an air pollution control
area must seek prior approval/consent of the State Board, with-
out which it cannot work. If the industrial plant was already
operational before 1 April 1988, for which no consent was nec-
essary, it shall also apply for consent to the State Board within a
period of three months and continue its work till its application is
disposed of.*’
2. An application for consent shall be accompanied by such fees as
may be prescribed and it shall be made in the prescribed pro forma
which shall contain all the particulars of the industrial plant.
3. On the receipt of such application for consent, the Board shall
make such enquiry as it may deem fit and follow the prescribed
procedure for the same.
4. On an application so received, the State Board shall either
a) grant the consent subject to such conditions and for such period
as may be specified in the order, or b) refuse such consent. But
the order, granting or refusing permission, shall be made in writ-
ing and shall be made within four months after the receipt of the
application.
If the consent has been granted for a certain period, it can be
cancelled before the expiry of such period or the Board can refuse
consent after the expiry of that period if the conditions specified in
the consent are not complied with.
But before cancelling the consent or refusing a further consent,
a reasonable opportunity of being heard shall be granted to the
person concerned.
5. Every person to whom consent has been granted by the State Board
shall comply with the following conditions, namely,

36. (1998) 9 SCC 250; see also, M.C. Mehta v. Union of India, (1997) 2 SCC 353.
37, 3.28
 [CHAP.
322 ENVIRONMENTAL LAW

Board may
(i) the control equipment of such specifications as the State
prem-
approve in this behalf shall be installed and operated in the
on;
ises where the industry is carried on or proposed to be carried
ced
(ii) the existing control equipment, if any, shall be altered or repla
in accordance with the directions of the State Board;
be
(iii) the control equipment referred to in clause (i) or clause (#) shall
kept at all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State
Board may approve in this behalf shall be erected or re-erected in
such premises;
(v) such other conditions as the State Board may specify in this behalf;
and
(vi) the conditions referred to in clause (i), (77) and (zv) shall be complied
with within such period as the State Board may specify in this
behalf:
Provided that in the case of a person operating any industrial plant in
an air pollution control area immediately before the date of declaration of
such area as an air pollution control area, the period so specified shall not
be less than six months:
Provided further that—
(a) after the installation of any control equipment in accordance
with the specifications under clause (Z); or
(b) after the alteration or replacement of any control equipment
in accordance with the directions of the State Board under
clause (7); or
(c) after the erection or re-erection of any chimney under
clause (iv),
no control equipment or chimney shall be altered or replaced or, as the
case may be, erected or re-erected except with the prior approval of the
State Board.*®
6. If due to any technological improvement or otherwise the State
Board is of the opinion that all or any of the conditions referred to
require or requires variation (including the change of any control
equipment, either in whole or in part), the State Board shall, after
giving the person to whom consent has been granted an opportu-
nity of being heard, vary all or any of such conditions and there-
upon such person shall be bound to comply with the conditions as
so varied.
7. Where a person to whom consent has been granted by the State
Board transfers his interest in the industry to any other person,
such consent shall be deemed to have been granted to such other
person and he shall be bound to comply with all the conditions
subject to which it was granted as if the consent was granted to him
originally.

387Si 27.
Io] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 323

In the Oleum Gas Leakage case*’, the last consent for the operation of
Shriram Industry was granted for six months, i.e. on 31 December 1985.
Therefore, the Supreme Court, while permitting it to restart after the
leakage of oleum gas, specified the condition that the particulate matter
emitted by the stacks of the boiler shall not be more than 150 mg/Nm?
and the Central Board shall inspect the site for the said purpose. Some
other conditions were also attached with the order issued by the court.
In Ved Kaur Chandel v. State of H.P.*°, the H.P. State Pollution
Control Board issued only a “conditional consent” to establish the tyre
retreading factory before the final order was to be issued. The respond-
ent also gave an affidavit that the industry shall undertake to follow the
cold-retreading process with electricity. Therefore, there was no appre-
hension of air and water pollution.
In M.C. Mehta v. Union of India*', the Indian Supreme Court ordered
for the closure of a hot-mix plant operating in the vicinity of the inter-
national airport in Delhi. The plant was needed to resurface the runway
which was a work of national importance. The court ordered to set up
the plant in safe vicinity of the airport if it had adopted the latest tech-
nology in the field and conditional permission was granted.
In Chhatisgarh Hydrade Line Industries v. Special Area Development
Authority*, the Pollution Control Board (PCB) refused to grant permis-
sion for starting a hydrated lime factory as it was close to a government
college and a 100-bed hospital.
The Supreme Court also directed in M.C. Mehta v. Union of India*,
(Badkhal Lake & Surajkund case) to stop mining activities within a
2-kms radius of the tourist resorts of Badkhal and Surajkund and develop
a green belt of 200 metres as the mining operations were causing air and
noise pollution in these areas.
In Chaitanya Pulvarising Industry v. Karnataka State Pollution
Control Board**, the court held that if consent has been granted by the
Board with specific conditions and they are not abided by, the consent
can be taken back by the Board. In this case, the industry failed to carry
out the conditions specified in the consent order. Therefore, the court
decided that action could be taken against the erring industry under
Section 37 of the Act and it could be punished accordingly. But before
passing any prohibitory order, the Board must also take into considera-
tion the problems which may arise from the closure of an industry —as

39. (1986) 2 SCC 325: AIR 1987 SC 982.

40. AIR 1999 HP 59.
41. (1999) 7 SCC 522: AIR 1999 SC 2367.
42. AIR 1989 MP 82.
43. (1996) 8 SCC 462: AIR 1996 SC 1977.
44. AIR 1987 Kar 82.
324 ENVIRONMENTAL LAW |[CHAP.

the denial of livelihood to the workers, or grave injury to the owner of

the industry. ,
The Board, before issuing the order for closure and order for with-
drawal of consent, should follow the procedure prescribed for the same.”
The Gujarat High Court reiterated in Yakubbhai Sharifbhai Benerjee
v. State of W.B.** that the stone crushing units cause lot of air pollution,
therefore, the distance between a crushing unit and residential locality
should not be less than one km as it was fixed by the Supreme Court in
Mohd. Harron Ansari v. District Collector*”

1.16 Power of the Board to make application to court for

restraining persons causing air pollution
Section 22-A** of the Act provides that when there is an apprehension by
a Board that any industry, operation or process is likely to emit any pol-
lutant in excess of the standards laid down by the Board, the Board may
make an application to a court, not inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the First Class for restraining such
person from emitting such air pollutant, provided such industry, etc., is
operating in a pollution control area.
On the receipt of such an application a court can make any order it
deems fit. But if the court makes an order for restraining such person
from discharging or causing or permitting to discharge any air pollut-
ants, the court may
1. direct such person to desist from taking such action as is likely to
cause emission;
2. authorise the Board, if the direction in clause (1) is complied with
by such person to whom the direction is issued, to implement the
directions as specified by the court.
All expenses incurred by the Board in implementing the directions of the
court shall be recoverable from such person as arrears of land revenue or
of public demand.

1.17 Power of the Board to take remedial measures on receiving

information of emission of air pollutants
1. Duty to inform.—The Act provides? a) where there is emission
of air pollutants in excess of the standards laid down by the SPCB, or

45. Mahabir Coke Industry v. Pollution Control Board, AIR 1998

Gau tro.
46. (2013) 3 FLT 64.
47. (2004) 1 SCC 491: AIR 2004 SC 823.
48. Incorporated in 1987 and came into force on 1-4-1988.
49. «23,
To} AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 325

b) apprehension of an accident or other unforeseen act or event causing

pollution, the person in charge of such premises shall forthwith intimate
the fact of emission/occurrence/apprehension of occurrence to the State
Board and to such authorities as may be prescribed.
2. Action by the Board.—On the receipt of such information, the
State Board and authorities or agencies “shall”, as early as practicable,
cause/take such remedial measures as are necessary to mitigate the emis-
sion of such air pollutants.
3. Recovery of expenses.—If the Board/authority/agency incurs some
expenses in taking remedial measures, it may recover these expenses from
the person concerned as arrears of land revenue, or of public demand.
This measure of recovery of expenses is a preventive measure to miti-
gate the emission of pollutants. But drastic action like closing down the
industry/plant cannot to be taken under this measure. It also does not
have legal sanctity and a number of persons may become unemployed.”
In some cases, courts have issued writs of mandamus against the Board
to implement standards laid down by the Board and against their inac-
tion.°! In one case, the SDM ordered for the removal of a factory as the
factory was releasing heat from the boiler and emitting smoke in viola-
tion of the standards. This was detrimental to the health and comfort of
the public at large as the factory was in the heart of the city.”

1.18 Power of entry and inspection

Section 24 of the Act confers the power of entry and inspection on the
State Boards.
It provides that any person so empowered by a State Board in this
behalf shall have a right to enter, at all reasonable times and with such
assistance as he considers necessary in any factory, process or industry.
Such entry can be made
1. for the purpose of performing any of the functions of the State
Board entrusted to him;
2. for the purpose of determining whether and if so in what manner
a) any function to be performed, or b) provision of the Act, or
c) the rules made thereunder, or d) any notice, order, direction or
authorisation served, made, given, granted under the Act is being
or has been complied with;

50. Chaitanya Pulvarising Industry v. Karnataka State Pollution Control Board, AIR
1987 Kar 82.
51. V.S. Damodaran Nair v. State of Kerala, AIR 1996 Ker 8.
52. Krishna Gopal v. State of M.P., 1986 Cri LJ 396 (MP).
 326 ENVIRONMENTAL LAW [CHAP. >

3. for the purpose of examining and testing any control equipment,

industrial plant, record, register, document; or |
4. for conducting search of any place in which he has reason to believe
that an offence under this Act or the rules made thereunder has
been or is being or is about to be committed; and ,
5. for seizing any control equipment, industrial plant, record, etc., if
he has reasons to believe that it may furnish evidence of the com-
mission of an offence punishable under the Act.
Every person operating any control equipment, industrial plant, etc.,
shall be bound to render all assistance to the person empowered by the
State Board. If he fails to do so without any reasonable cause or excuse,
he shall be guilty of an offence under this Act. Even delaying or obstruct-
ing the entry or inspection shall attract punishment under the Act.
For the purposes of entry and inspection, the provisions of the
Criminal Procedure Code, 1973 (CrPC) shall be applied and the pro-
visions of Section 94 of the said Code shall be applicable in relation to
search and seizure.

1.19 Power to obtain information

Section 25 of the Act empowers the State Board and its officers to call
for information from the occupier or any other person carrying on any
industry, operation, etc.
For the purpose of verifying the correctness of such information, such
call for information also includes the information regarding the type of
pollutants discharged in the air and level of such pollutants in the air.

1.20 Power to take samples of air or emission and the procedure

to be followed
One of the powers granted to a State Board is to take samples of air or
emission for the purpose of analysis from any chimney, flue or duct or
any other outlet in the prescribed manner.°
The procedure to take the sample shall be in the following manner.
The person taking the sample shall
(a) serve on the occupier or his agent, a notice, then and there,
in such
form as may be prescribed, of his intention to have it so analysed;
(b) in the presence of the occupier or his agent, collect a
sample of emis-
sion for analysis;
(c) cause the sample to be placed in a container or containe
rs which shall
be marked and sealed and shall also be signed both by
the person
taking the sample and the occupier or his agent;
33:8. BGR):
54. S. 26(3).
10] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 327

(d) send, without delay, the container or containers to the laboratory

established or recognised by the State Board under Section 17 or, if a
request in that behalf is made by the occupier or his agent when the
notice is served on him under clause (a), to the laboratory established
or specified under sub-section (1) of Section 28.
1. If the occupier, etc. wilfully absents himself after notice is
served.— When the officer taking the sample serves notice and the occu-
pier or his agent wilfully absents himself, the person taking the sample
shall collect the sample of emission and place it in a container/containers
which shall be marked and sealed and signed by the person taking the
sample. [S. 26(4)(a)|
2. If the occupier or agent is present but refuses to sign.— Where
the occupier or his agent is present at the time of taking the sample but
refuses to sign the sealed container, the marked and sealed container
shall be signed by the person taking the sample. [S. 26(4)(b)|
After taking the sample in the above manner, the container/containers
shall be sent without delay for analysis to the laboratory established or
recognised by the State Government. The government analyst shall be
informed of the wilful absence or refusal of the occupier or his agent.
3. Evidentiary value of the sample.—If the State Board or any author-
ised officer follows the procedure mentioned above, the result of any
analysis of the sample of emission shall be admissible in evidence in any
legal proceedings.

1.21 Report of the result of analysis on samples taken under

Section 26
Where a sample of emission has been sent for analysis to the labora-
tory established or recognised by the State Board, the Board’s analyst
appointed under sub-section (2) of Section 29 shall analyse the sample
and submit a report in the prescribed form of such analysis in triplicate
to the State Government.
One copy of the report shall be sent by the State Board to the occupier
or his agent referred to in Section 26, another copy shall be preserved
for production before the court in case any legal proceedings are taken
against him and the other copy shall be kept by the State Board.
Any cost incurred in getting any sample analysed at the request of
the occupier or his agent as provided in clause (d) of sub-section (3) of
Section 26, or when he wilfully absents himself or refuses to sign the
marked and sealed container or containers of sample of emission under

§§, $1 26(2):
 |CHAP.>

328 ENVIRONMENTAL LAW

pier or his
sub-section (4) of that section, shall be payable by such occu
agent and in case of default, the same shall be recoverable from him as
arrears of land revenue or of public demand [S. 26(4)].

1.22 Power to give directions

Originally, such power did not vest with the Board. It was incorporated
in 1987°° only.
Newly incorporated Section 31-A provides that subject to the power
of this Act, and to any directions issued by the Central Government, the
Board may issue any directions to any person, officer or authority, and
1. such direction shall be issued in writing;
2. such authority, officer or person shall be bound to comply with
such directions; and
3. this power to issue directions includes the power to direct
(a) the closure, prohibition or regulation of any industry, opera-
tion or process; or
(b) the stoppage or regulation of supply of electricity, water or
any other services.
In Animal Feeds Dairies and Chemicals Ltd. v. Orissa State (Prevention
and Control of Pollution) Board’’, the court clarified that only the Board
or any other officer authorised in this behalf can issue directions. The
Member-Secretary cannot issue a direction unless he is so authorised
or powers are delegated to him as provided under Section 15 of the Act.
Therefore, directions issued by the Member-Secretary were held to be
without jurisdiction and such exercise of powers was illegal. Secondly,
possibility of emission of foul odour or emission of foul odour itself is no
ground to direct the factory to shift or close down.
The Gauhati High Court also made it clear that an opportunity must
be provided to the industry for applying for consent to the Board before a
direction for closure is issued by the Board. In this case, consent was not
obtained by the industry as it was established before the Act came into
force. Notice of the closure was quashed.**
In Suma Traders v. Karnataka State Pollution Control Board°’,
the petitioner challenged the directions issued by the PCB to close the
industry and its order to the authorities concerned to stop the supply
of electricity and water to the industry. The petitioner pleaded that the
directions issued by the Board were void as the State Government did not

56. Came in force on 1-4-1988.

57. AIR 1995 Ori 84.
58. Jadav Soap Works v. Union of India, AIR 2000 Gau 47.
59. AIR 1998 Kar 8; Santosh Kumar Gupta v. Ministry of Environment, AIR 1998 MP
43; Murali Purushothaman v. Union of India, AIR 1993 Ker 297.
to] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 329

delegate the powers to issue directions to the Board. The court accepted
the arguments put forth by. the petitioner and quashed the directions
issued by the Board. The petitioner was an industry processing grain in
Bangalore. And it was alleged that the machine used for processing grain
was Causing air pollution in the area.
In M.C. Mehta v. Union of India (Matter Regarding Brick Kilns),
the CPCB in compliance with the Supreme Court’s order, after giving
notice to the industries concerned, directed them to close down w.e.f.
30 June 1997. Further it decided that these brick kiln industries could
open after shifting to new allotted site, and after adopting newer and
cleaner technology. The Delhi Administration was also directed to ren-
der necessary help and facilities to brick kilns wanting to shift/relocate
themselves. The court also laid down the rights and benefits to be given
to the workmen of the closing brick kilns.
In Pollution Control Board v. Mahabir Coke Industry, the Board
directed the respondent industry to conform to the required standards or
establish an air pollution control device. The Supreme Court upheld the
direction of the Board.

1.23 Directions of the Pollution Board should not be interfered

The Calcutta High Court clarified in Alloy Steel Rolling Mills v. W.B.
Pollution Control Board® that the direction issued by the PCB under
Rule 3(2) of the Environment (Protection) Rules, 1989 should not be
interfered with unless and until there was a proof of bias and perversity
in such directions. In this case, the West Bengal Pollution Control Board
(WBPCB), on the report of the Expert Committee and recommendations
of the National Engineering and Research Institute (NEERI), ordered
the mill to change over from coal fired system to cleaner fuel system of
either gas or oil within a stipulated period. The Board passed its decision
under Rule 3(2) for the compliance with National Ambient Air Quality
Standards. It was further held that when the directions of the Board are
based on the basis of the recommendation of the High Powered Expert
Committee, which examined the whole issue, the precautionary prin-
ciple has no application. Therefore, any action on the part of the court
is uncalled for unless “the policy decision is ex facie unreasonable and
perverse”. The court found that the decision of the WBPCB was “taken
in furtherance of public interest and in order to prevent further degrada-
tion of air quality in or around-Kolkata Metropolitan Area”. The writ
petition was dismissed.

60. (1998) 9 SCC 149; see also, M.C. Mehta v. Union ofIndia, 1994 Supp (3) SCC 717.
61. (2000) 9 SCC 344.
62. AIR 2006 Cal 75.
 330 ENVIRONMENTAL LAW [CHAP.

1. Appeal against the orders of the Board.—Section 31 of the Act

provides remedial measures to the person aggrieved by the orders of the
SPGB.
In State Pollution Control Board Orissa v. Jagannath Stone Crusher®’,
the court made it clear that if closure order has been made by the PCB
under Section 31-A for the closure of stone crushers, statutory alternative
remedy of filing the appeal should be availed instead of filing writ peti-
tion under Article 226 of the Indian Constitution.
2. Right to appeal to the authority.—I\t provides that any person
aggrieved by an order made by the State Board can appeal to such author-
ity (appellate authority) constituted by the State Government within 30
days from the date on which the order was made. Such authority should
be a combination of judicial persons and scientists. The qualifications
of the members of such “authority” are not clearly spelled out under
Section 31 of the Act.** Therefore, an amendment to existing notifica-
tions under these Acts can be made for the present.
3. Constitution.—The appellate authority shall consist of a single
person or three persons as the State Government may think fit to be
appointed.
4. Time limit.—The appeal should be made within 30 days from the
date on which the order is communicated to the defaulter. The appellate
authority can also entertain the appeal after the expiry of 30 days if the
authority is satisfied that the appellant was prevented by sufficient cause
from filing the appeal in time.
5. Procedure.—The form, the manner in which an appeal may be pre-
ferred, fees payable and the procedure shall be such as may be prescribed.
The appellate authority shall give an opportunity of being heard to the
appellant and the State Board, and shall dispose of the appeal as expedi-
tiously as possible.
The Supreme Court of India in A.P. Polluii i v. Prof.
CASE PILOT M.V. udu® declared that the appellate authority has a right to hear
the aggrieved persons and give judgment, but pointed out that the Act
does not lay down any special qualification for the appellate authority.
Therefore, such authority “needs to provide adequate judicial and sci-
entific input rather than leave complicated disputes regarding environ-
mental pollution to officers drawn only from the executive”. Thus, it
requires structural change.

63. Civil Appeal No. 4958 of 2010, decided on 6-7-2010 (SC).

64. A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR
1999 SC 812.
65. (1999) 2 SCC 718: AIR 1999 SC 812.
66. A.P. Pollution Control Board v. Prof. M.V. Nayudu,
(1999) 2 SCC 718: AIR 1999
SC 812, 822. Though this case primarily related to water pollu
tion, but there was a
to] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 331

If the directions are issued by the Board under Section 17, then such
directions cannot be condemned on the ground that these directions run
contrary to the provisions of the Environment (Protection) Act, 1986.
The Environment (Protection) Act is a general Act while Air Act and
Water Act are special Acts. Since these two Acts are Special Acts, they
cannot be superseded by the general Act—the Environment (Protection)
Act. Further, it has been made clear that if the State Board has power to
issue direction for closure, prohibition or regulation of any industry, it
has powers to issue orders to shift the industry.”
The Supreme Court also opined that the establishment of the National
Environment Appellate Authority Act, 1997 is a welcome venture in this
direction which provides both judicial and technical expertise for its
functioning.

1.24 Funds, accounts and audit

Sections 32 to 36 deal with the funds, accounts and audit of the State
Boards. These provisions are as follows:
32. Contributions by Central Government.—The Central Government
may, after due appropriation made by Parliament by law in this behalf, make
in each financial year such contributions to the State Boards as it may think
necessary to enable the State Boards to perform their functions under this
Act:
Provided that nothing in this section shall apply to any State Pollution
Control Board constituted under Section 4 of the Water (Prevention and
Control of Pollution) Act, 1974 (6 of 1974), which is empowered by that Act
to spend money from its fund thereunder also for performing its functions,
under any law for the time being in force relating to the prevention, control
or abatement of air pollution.
33. Fund of Board.—(1) Every State Board shall have its own fund for the
purposes of this Act and all sums which may, from time to time, be paid to it
by the Central Government and all other receipts (by way of contributions, if
any, from the State Government, fees, gifts, grants, donations, benefactions
or otherwise) of that Board shall be carried to the fund of the Board and all
payments by the Board shall be made therefrom.
(2) Every State Board may expend such sums as it thinks fit for performing
its functions under this Act and such sums shall be treated as expenditure
payable out of the fund of that Board.
(3) Nothing in this section shall apply to any State Pollution Control
Board constituted under Section 4 of the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974), which is empowered by that Act to expend
money from its fund thereunder also for performing its functions, under any

remark by the court for all legislations relating to environmental bodies—courts,

authorities and tribunals.
67. Bihar State Pollution Control Board v. Hiranand Stone Works, AIR 2005 Pat 62.
 |CHAP.
332 ENVIRONMENTAL LAW

law for the time being in force relating to the prevention, control or abate-
ment of air pollution.
33-A. Borrowing powers of Board.—A Board may, with the consent of,
or in accordance with the terms of any general or special authority given to
it by the Central Government or, as the case may be, the State Government,
borrow money from any source by way of loans or issue of bonds, debentures
or such other instruments as it may deem fit, for discharging all or any of its
functions under this Act.
34. Budget.—The Central Board or, as the case may be, the State Board
shall, during each financial year, prepare, in such form and at such time as
may be prescribed, a budget in respect of the financial year next ensuing
showing the estimated receipt and expenditure under this Act, and copies
thereof shall be forwarded to the Central Government or, as the case may be,
the State Government.
Rule 15 of the Air (Prevention and Control of Pollution) Rules, 1982
deals with the Budget.
35. Annual Report.—(1) The Central Board shall, during each financial
year, prepare, in such form as may be prescribed, an annual report giving
full account of its activities under this Act during the previous financial year
and copies thereof shall be forwarded to the Central Government within four
months from the last date of the previous financial year and that Government
shall cause every such report to be laid before both Houses of Parliament
within nine months of the last date of the preceding financial year.
(2) Every State Board shall, during each financial year, prepare, in such
form as may be prescribed, an annual report giving full account of its activi-
ties under this Act during the previous financial year and copies thereof shall
be forwarded to the State Government within four months from the last date
of the previous financial year and that Government shall cause every such
report to be laid before the State Legislature within a period of nine months
from the last date of the previous financial year.
Rule 16 of the Air (Prevention and Control of Pollution) Rules, 1982
deals with the Annual Report.
36. Accounts and Audit.—(1) Every Board shall, in relation to its func-
tions under this Act, maintain proper accounts and other relevant records and
prepare an annual statement of accounts in such form as may be prescribed
by the Central Government or, as the case may be, the State Government.
(2) The accounts of the Board shall be audited by an auditor duly qualified
to act as an auditor of companies under Section 226 of the Companies Act,
1956 (1 of 1956).
(3) The said auditor shall be appointed by the Central Government or, as
the case may be, the State Government on the advice of the Comptroller and
Auditor-General of India.
(4) Every auditor appointed to audit the accounts of the Boards under
this Act shall have the right to demand the production of books, accounts,
connected vouchers and other documents and papers and to inspect any of
the offices of the Board.
 iKe)| AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 333

(5) Every such auditor shall send a copy of his report together with an
audited copy of the accounts to the Central Government or, as the case may
be, the State Government.
(6) The Central Government shall, as soon as may be after the receipt of
the audit report under sub-section (5), cause the same to be laid before both
Houses of Parliament.
(7) The State Government shall, as soon as may ib after the receipt of the
audit report under sub-section (5), cause the same to be laid before the State
Legislature.

1.25 Penalties and procedure

The Air (Prevention and Control of Pollution) Act, 1981 originally did
not have effective provisions for penalties, but the Amendment Act, 1987
has made widespread changes. The following provisions are amended
provisions which came into force on 1 April 1988. Sections 37, 38, and 39
prescribe the penalties for offences. Sections 40 and 41 have introduced
the theory of vicarious liability and Section 43 provides for the court
which will take cognizance of the offences under the Act and the person
by whom a complaint can be made under the Act.

1.26 Penalties
Section 37 provides for the offences under Sections 21, 22 and 31-A of
the Act.

TABLE 1 Punishment for non-compliance of provisions of different sections

For non-compliance with

Section 21 (to establish or operate an industry ; id
without consent) Punishable with imprisonment which shall not be less
Fea gasthtees sae ee Ie Ge eh ch dates tier dubigaren dp dntdeta-dcdey hacen wlohe bade dtemtibenorey than one year and six months and which may extend to

Section 22 (emission of air pollutants in excess ofthe —¢ years and with fine.
standards)
Section 31-A (non-compliance with the directions)

If failure continues, an additional fine which may extend to #5000 for

each day during which the failure continues would be imposed after the
conviction for the first such failure.
If the failure continues beyond a period of one year after the date of
conviction, the offender shall be punishable with imprisonment which
shall not be less than two years but which may extend to seven years,
and with fine.
It is to be noted that the doctrine of mens rea is not applicable in such
cases.
The Karnataka High Court has suggested that before exercising its
powers under the provisions of Section 37, the Board must use all other
334 ENVIRONMENTAL LAW [CHAP.

remedial measures contemplated by the Act to mitigate the emission of

air pollutants.®

1.27 Penalties for certain acts

Section 38 of the Act provides penalties for the commission of acts as
listed under it. It provides that whoever
(a) destroys, pulls down, removes, injures or defaces any pillar, post
or stake fixed in the ground or any notice or other matter put up,
inscribed or placed, by or under the authority of the Board, or
obstructs any person acting under the orders or directions of the
Board from exercising his powers and performing his functions under
this Act, or
damages any works or property belonging to the Board, or
fails to furnish to the Board or any offices or other employee of the
Board any information required by the Board or such officer or other
employee for the purpose of this Act, or
fails to intimate the occurrence of the emission of air pollutants into
the atmosphere in excess of the standards laid down by the State Board
or the apprehension of such occurrence, to the State Board and other
prescribed authorities or agencies as required under sub-section (1) of
Section 23, or
(f) in giving any information which he is required to give under this Act,
makes a statement which is false in any material particular, or
(g) for the purpose of obtaining any consent under Section 21, makes a
statement which is false in any material particular
shall be punishable with imprisonment for a term which may extend to three
months or with fine which may extend to ten thousand rupees or with both.
Section 38 makes it abundantly clear that every act, commission or omis-
sion as listed above is an offence per se.

1.28 Residuary clause

Section 39 provides punishment for those acts or omissions which have
not been covered by Sections 37 and 38 of the Act.
It provides:
39. Penalty for contravention ofcertain provisions of the Act.— Whoever
contravenes any of the provisions of this Act or any order or direction issued
thereunder, for which no penalty has been elsewhere provided in this Act,
shall be punishable with imprisonment for a term which may extend to three
months or with fine which may extend to ten thousand rupees or with both,
and in the case of a continuing-contravention, with an additional fine which

68. Chaitanya Pulvarising Industry v. Karnataka State Pollution Control Board,

AIR
1987 Kar 82.
To] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 335

may extend to five thousand rupees for every day during which such contra-
vention continues after conviction for the first such contravention.
Thus, it declares in unequivocal terms that non-compliance, violation
Or inaction on the part of the industry, plant, operation of the provi-
sions of the Act and the rules made thereunder would be punished under
Section 39.
Since a company, industry, etc., is not a natural person, then who
should be punished? This problem has been solved by Sections 40 and
41. The following two sections, i.e. Sections 40 and 41, also enunciate
the principle of vicarious liability.

1.29 Offences by companies

Section 40(1) provides that where an offence has been committed by a
company:
every person who, at the time the offence was committed, was directly in
charge of, and was responsible to, the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly.
1. Defence.—But such person can be absolved of his liability if he can
prove that
(a) the offence was committed without his knowledge, or
(b) he exercised all due diligence to prevent the commission of such
offence.
2. Liability of the director, manager, secretary or any other officer.—
Clause (2) of Section 40 provides
where an offence under this Act has been committed by a company and
it is proved that the offence has been committed with the consent or conniv-
ance of, or is attributable to any neglect on the part of any director, manager,
secretary or other officer of the company, such director, manager, secretary
or other officer shall also be deemed to be guilty of that offence and shall be
liable to be proceeded against and punished accordingly.
The explanation of the section makes it clear that here “company” means
any body corporate, and includes a firm or other associations of individ-
uals; and “director” in relation to a firm® means a partner in the firm.
In MCD v. J.B. Bottling Co. (P) Ltd.”°, the court declared that since
the punishment of imprisonment could not be awarded to a juristic
person like a company, only fine can be imposed on it.

69. K.K. Ahuja v. V.K. Vohra, (2009) 10 SCC 48: (2010) 2 SCC (Cri) 1181.
70. 1975 Cri LJ 1148 (Del); also see, U.P. Pollution Control Board v. Mohan Meakins
Ltd., (2000) 3 SCC 745.
336 ENVIRONMENTAL LAW [CHAP.

In Sterlite Industries (India) Ltd. v. Union of India”, the court

imposed a fine, by way of compensation, of ¥ 100 crores for violating the
consent orders under the Air Act and other Environmental statutes.

1.30 Offences by government departments

Section 41 of the Act provides that where an offence, under the Act, has
been committed by any department of the government, the Head of the
Department shall be deemed to be guilty of the offence, and shall be lia-
ble to be proceeded against and punished accordingly.
Defence.—But the Head of the Department shall not be liable if he
can prove that the offence was committed 1) without his knowledge, or
2) that he exercised all due diligence to prevent the commission of such
offence.
Similarly, if an offence is committed under the Act by a department
of the government and it is proved that the offence has been committed
with the consent or connivance of, or is attributable to any neglect on the
part of, any officer, other than the Head of the Department, such officer
shall also be deemed to be guilty of that offence, and shall be liable to be
proceeded against and punished accordingly.
It makes it clear that the liability of the Head of the Department is
independent.

1.31 The court and cognizance of offence

The Act under Section 43 provides that a complaint shall be filed in and
tried by a Metropolitan Magistrate or a Judicial Magistrate of the first
class for offences punishable under the Act.
The complaint for an offence under the Act shall be made by
1. a Board or any officer authorised in this behalf by it; or
2. any person who has given notice of not less than 60 days, in the
manner prescribed, of the alleged offence, and of his intention
to make a complaint to the Board or officer authorised for this
purpose.
No court shall take cognizance of any offence under the Act except on a
complaint made as above.
Where a complaint has been made by a person as mentioned above,
the Board shall, on demand by such person, make available the relevant
reports in its possession to that person. But such report can be withheld
and refused, if the Board feels that it is “against the public interest”.

71. (2013) 4 SCC 575.

IO] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 337

The abovementioned courts are the lowest courts where a complaint

can be filed and such complaint can also be filed in the court of a Chief
Judicial Magistrate.

1.32 Protection of Board and its officers

Sections 42 and 44 provide protection to the members and officers of the
Boards.
Section 42 narrates:
42. Protection of action taken in good faith.—No suit, prosecution or
other legal proceeding shall lie against the Government or any officer of the
Government or any member or any officer or other employee of the Board
in respect of anything which is done or intended to be done in good faith in
pursuance of this Act or the rule made thereunder.
The above section makes it clear that if the act done by the employee or
member of the Board is unauthorised or illegal patently, the Act shall not
protect him.” The term “good faith” has been defined under Section 52,
Penal Code, 1860 (IPC).

1.33 Members, officers and employees of Board to be

public servants
Section 44 declares:
All members and all officers and other employees of a Board, when act-
ing or purporting to act in pursuance of any of the provisions of this Act or
the rules made thereunder, shall be deemed to be public servants within the
meaning of Section 21 of the Indian Penal Code (45 of 1860).
By declaring the employees and members of the Board as public servants,
to them the Act made applicable other sections of the IPC which have
been mentioned in Chapter X (from Ss. 172 to 190) entitled as “of con-
tempts of the lawful authority of public servant”.

1.34 Bar of jurisdiction

Section 46 provides that where an appeal lies to an appellate author-
ity constituted under the Act, no civil court shall have jurisdiction to
entertain a suit or proceeding in this behalf. Further, the court shall not
determine or issue injunction against any court or authority in respect of
the action taken or to be taken in pursuance of any power conferred by
or under this Act.

72. Surat Singh v. MCD, (1989) 1 RCR 361 (Del).

338 ENVIRONMENTAL LAW [CHAP.

1.35 Miscellaneous
47. Power of State Government to supersede State Board.—(1) If at any
time the State Government is of opinion—
(a) that a State Board constituted under this Act has persistently made
default in the performance of the functions imposed on it by or under
this Act, or
(b) that circumstances exist which render it necessary in the public inter-
est so to do,
the State Government may, by notification in the Official Gazette, super-
sede the State Board for such period, not exceeding six months, as may be
specified in the notification:
Provided that before issuing a notification under this sub-section for
the reasons mentioned in clause (a), the State Government shall give a
reasonable opportunity to the State Board to show cause why it should
not be superseded and shall consider the explanations and objections, if
any, of the State Board.
(2) Upon the publication of a notification under sub-section (1) supersed-
ing the State Board—
(a) all the members shall, as from the date of supersession, vacate
their offices as such;
(b) all the powers, functions and duties which may, by or under this
Act, be exercised, performed or discharged by the State Board
shall, until the State Board is reconstituted under sub-section (3),
be exercised, performed or discharged by such person as the State
Government may direct;
(c) all property owned or controlled by the State Board shall, until
the Board is reconstituted under sub-section (3), vest in the State
Government.
(3) On the expiration of the period of supersession specified in the notifi-
cation issued under sub-section (1), the State Government may —
(a) extend the period of supersession for such further term, not
exceeding six months, as it may consider necessary; or
(b) reconstitute the State Board by a fresh nomination or appoint-
ment, as the case may be, and in such case any person who vacated
his office under clause (a) of sub-section (2) shall also be eligible
for nomination or appointment:
Provided that the State Government may at any time before the expi-
ration of the period of supersession, whether originally specified under
sub-section (1) or as extended under this sub-section, take action under
clause (b) of this sub-section.
It must be clear that supersession of the Board does not mean the dissolu-
tion of the Board as the supersession can be only for six months.
The proviso of clause (x) has introduced the principles of natural justi
ce
and audi alteram partem, by providing an opportunity of being heard
.
48. Special provision in the case of supersession of the Central
Board or
the State Boards constituted under the Water (Prevention and
Control of
to] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 339

Pollution) Act, 1974.—Where the Central Board or any State Board con-
stituted under the Water (Preyention and Control of Pollution) Act, 1974, is
superseded by the Central Government or the State Government, as the case
may be, under that Act, all the powers, functions and duties of the Central
Board or such State Board under this Act shall be exercised, performed or
discharged during the period of such supersession by the person or persons,
exercising, performing or discharging the powers, functions and duties of the
Central Board or such State Board under the Water (Prevention and Control
of Pollution) Act, 1974, during such period.
49. Dissolution of State Boards constituted under the Act.—(1) As and
when the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974),
comes into force in any State and the State Government constitutes a State
Pollution Control Board under that Act, the State Board constituted by
the State Government under this Act shall stand dissolved and the Board
first-mentioned shall exercise the powers and perform the functions of the
Board second-mentioned in that State.
(2) On the dissolution of the State Board constituted under this Act—
(a) all the members shall vacate their offices as such;
(b) all moneys and other property of whatever kind (including the
fund of the State Board) owned by, or vested in, the State Board,
immediately before such dissolution, shall stand transferred to
and vest in the State Pollution Control Board;
(c) every officer and other employee serving under the State Board
immediately before such dissolution shall be transferred to and
become an officer or other employee of the State Pollution Control
Board and hold office by the same tenure and at the same remu-
neration and on the same terms and conditions of service as he
would have held the same if the State Board constituted under
this Act had not been dissolved and shall continue to do so unless
and until such tenure, remuneration and terms and conditions of
service are duly altered by the State Pollution Control Board:
Provided that the tenure, remuneration and terms and conditions of
service of any such officer or other employee shall not be altered to his
disadvantage without the previous sanction of the State Government;
(d) all liabilities and obligations of the State Board of whatever kind,
immediately before such dissolution, shall be deemed to be the
liabilities or obligations, as the case may be, of the State Pollution
Control Board and any proceeding or cause of action, pending
or existing immediately before such dissolution by or against the
State Board constituted under this Act in relation to such liability
or obligation, may be continued and enforced by or against the
State Pollution Control Board.
51. Maintenance of register.—(1) Every State Board shall maintain a reg-
ister containing particulars of the persons to whom consent has been granted
under Section 21, the standards for emission laid down by it in relation to
each such consent and such other particulars as may be prescribed.
(2) The register maintained under sub-section (1) shall be open to inspec-
tion at all reasonable hours by any person interested in or affected by such
 [CHAP.
340 ENVIRONMENTAL LAW

ed by such person in
standards for emission or by any other person authoris
this behalf.
by or under the
52. Effect of other laws.—Save as otherwise provided
air pollution
Atomic Energy Act, 1962 (33 of 1962), in relation to radioactive
incon-
the provisions of this Act shall have effect notwithstanding anything
sistent therewith contained in any enactment other than this Act.
Central
53. Power of Central Government to make rules.—(1) The
ication
Government may, in consultation with the Central Board, by notif
rs,
in the Official Gazette, make rules in respect of the following matte
namely:—
(a) the intervals and the time and place at which meetings of the Central
Board or any committee thereof shall be held and the procedure to
be followed at such meetings, including the quorum necessary for the
transaction of business thereat, under sub-section (1) of Section 10
and under sub-section (2) of Section 11;
(b) the fees and allowances to be paid to the members of a committee of the
Central Board, not being members of the Board, under sub-section (3)
of Section 11;
(c) the manner in which and the purposes for which persons may be asso-
ciated with the Central Board under sub-section (1) of Section 12;
(d) the fees and allowances to be paid under sub-section (3) of Section 12
to persons associated with the Central Board under sub-section (1) of
Section 12;
(e) the functions to be performed by the Central Board under clause (/) of
sub-section (2) of Section 16;
(f) the form in which and the time within which the budget of the Central
Board may be prepared and forwarded to the Central Government
under Section 34;
(ff) the form in which the annual report of the Central Board may be pre-
pared under Section 35;
(g) the form in which the accounts of the Central Board may be main-
tained under sub-section (1) of Section 36.
(2) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament,
while it is in session for a total period of thirty days which may be comprised
in One session or in two or more successive sessions, and if, before the expiry
of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.
The Central Government has, in the exercise of the powers conferred
under this section, notified the Air (Prevention and Control of Pollution)
Rules in 1982 and for Union Territories in 1983.
54. Power of State Government to make rules.—(x) Subject to the pro-
vision of sub-section (3), the State Government may, by notification in the
To] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 341

Official Gazette, make rules to carry out the purposes of this Act in respect
of matters not falling within the purview of Section 53.
(2) In particular, and without prejudice to the generality of the forego-
ing power, such rules may provide for all or any of the following matters,
namely:—
(a) the qualifications, knowledge and experience of scientific, engineering
or management aspects of pollution control required for appointment
as member-secretary of a State Board constituted under the Act;
the terms and conditions of service of the Chairman and other mem-
bers (other than the member-secretary) of the State Board constituted
under this Act under sub-section (7) of Section 7;
the intervals and the time and place at which meetings of the State
Board or any committee thereof shall be held and the procedure to
be followed at such meetings, including the quorum necessary for the
transaction of business thereat, under sub-section (1) of Section 10
and under sub-section (2) of Section 11;
the fees and allowances to be paid to the members of a committee of
the State Board, not being members of the Board, under sub-section (3)
of Section 11;
the manner in which and the purposes for which persons may be asso-
ciated with the State Board under sub-section (1) of Section 12;
the fees and allowances to be paid under sub-section (3) of Section 12
to persons associated with the State Board under sub-section (1) of
Section 12;
the terms and conditions of service of the member-secretary of a State
Board constituted under this Act under sub-section (1) of Section 14;
the powers and duties to be exercised and discharged by the mem-
ber-secretary of a State Board under sub-section (2) of Section 14;
the conditions subject to which a State Board may appoint such
officers and other employees as it considers necessary for the efficient
performance of its functions under sub-section (3) of Section 14;
the conditions subject to which a State Board may appoint a consult-
ant under sub-section (5) of Section 14;
the functions to be performed by the State Board under clause (7) of
sub-section (1) of Section 17;
the manner in which any area or areas may be declared as air pollu-
tion control area or areas under sub-section (1) of Section 19;
the form of application for the consent of the State Board, the fees
payable therefor, the period within which such application shall be
made and the particulars it may contain, under sub-section (2) of
Section 21;
the procedure to be followed in respect of an enquiry under
sub-section (3) of Section 21;
the authorities or agencies to whom information under sub-section (1)
of Section 28 shall be furnished;
the manner in which samples of air or emission may be taken under
sub-section (1) of Section 26;
the form of the notice referred to in sub-section (3) of Section 26;
342 ENVIRONMENTAL LAW [CHAP.

(q) the form of the report of the State Board analyst under sub-section (1)
of Section 27; |
(r) the form of the report of the Government analyst under sub-section (3)
of Section 27;
(s) the functions of the State Air Laboratory, the procedure for the sub-
mission to the said laboratory of samples of air or emission for anal-
ysis or tests, the form of laboratory’s report thereon, the fees payable
in respect of such report and other matters as may be necessary or
expedient to enable that laboratory to carry out its functions, under
sub-section (2) of Section 28;
(t) the qualifications required for Government analysts under
sub-section (1) of Section 29;
(u) the qualifications required for State Board analysts under
sub-section (2) of Section 29;
(v) the form and the manner in which appeals may be preferred, the
fees payable in respect of such appeals and the procedure to be fol-
lowed by the appellate authority in disposing of the appeals under
sub-section (3) of Section 31;
(w) the form in which and the time within which the budget of the State
Board may be prepared and forwarded to the State Government under
Section 34;
(ww) the form in which the annual report of the State Board may be pre-
pared under Section 35;
(x) the form in which the accounts of the State Board may be maintained
under sub-section (1) of Section 36;
(xx) the manner in which notice of intention to make a complaint shall be
given under Section 43;
(y) the particulars which the register maintained under Section 51 may
contain; and
(z) any other matter which has to be, or may be, prescribed.
(3) After the first constitution of the State Board no rule with respect to
any of the matters referred to in sub-section (2) [other than those referred to
in clause (aa) thereof], shall be made, varied, amended or repealed without
consulting that Board.

2. NATIONAL AUTO FUEL POLICY

National auto fuel policy was declared on 21 October 2003. This policy
gives a roadmap for achieving various vehicular emission norms over a
period of time and the corresponding fuel quality upgradation require-
ments. It does not recommend any particular fuel or technology for
achieving the desired emission norms but suggests, taking into account
security of supplies and existing logistics perspectives, that liquid fuels
should remain as main auto fuels throughout the country and that
the
use of CNG/LPG be encouraged in cities affected by higher polluti
on
levels so as to enable vehicle owners to have the choice of the
fuel and
technology combination. Policy includes suitable auto fuels, automo
bile
To] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 343

technologies, fiscal measures, etc., to attain the desired objectives.”> The

policy “aims to comprehensively and holistically address the issues of
vehicular emission, vehicular technology, and auto-fuel quality in cost
efficient manner while ensuring the security of fuel supply”. Thus, the
policy also announced the Bharat II, II], IV emission norms in refer-
ence to Euro 2, 3, 4 norms to reduce pollution from vehicles. It was
also declared that liquid will be the main fuel but the use of CNG/LPG
would be encouraged in the cities affected by high vehicular pollution.
The policy also narrated that “to accelerate the development of other
alternative fuel vehicles including battery powered vehicles, hydrogen
and fuel cell vehicles, a comprehensive programme of policy support,
R&D support and other measures for zero emission vehicles would be
drawn up” and that “technologies for producing ethanol/biofuels from
different renewable energy sources and vehicles to utilise these biofuels
would be encouraged”.

2.1 Euro/Bharat norms

The first Indian emission standards were announced and became effec-
tive in 1989, but due to their ineffectiveness they were replaced by “mass
emission limits” for petrol vehicles in 1991 and for diesel vehicles in
1992. Later on Dr Mashelkar Committee was constituted to come out
with consolidated policy and as a result of which the auto fuel policy was
declared on 6 October 2003. The policy envisaged a phased programme
to introduce Euro 2-4 emission norms and fuel regulation by zor1o. But
these Euro emission norms have been modified looking to the weather
and road conditions in India. The chart below depicts the road map for
vehicular emission norms for new vehicles.

TABLE 2 Salient features of proposed auto fuel policy

Coverage Passenger cars, light commercial 2/3 wheelers

vehicles and heavy duty diesel
vehicles PPPTPTITIPT TIT TT TTL Ltt ee

Entire country Bharat Stage II— 1-4-2005 Bharat Stage II— 1-4-2005
Euro Ill equivalent— 1-4-2010 Bharat Stage Ill?

73.The Central Government appointed a committee under the Chairmanship of

Dr R.A. Mashelkar, Director General, CSIR on 13-9-2001. The report of the com-
mittee was submitted on 25-9-2002. Present policy is based on the report submitted
by the committee.
It was mentioned that measures have been announced looking at the number of
PILs filed seeking direction to control vehicular pollution.
 344. ENVIRONMENTAL LAW [CHAP.

11 major cities Bharat Stage I|— 1-4-2003 Preferably from 1-4-2008 but
(Delhi/NCR, Mumbai, Kolkata, Chennai, —_Euro Ill equivalent—1-4-2005 not later than 1-4-2010
Bangalore, Hyderabad, Ahmedabad, Euro IV equivalent— 1-4-2010
Pune, Surat, Kanpur and Agra)

2 These schedules would be reviewed in the year 2006, when Euro Il equivalent norms would be implemented in the
entire country and Euro Ill equivalent norms would be implemented in 11 major cities.

3. NATIONAL POLICY ON BIOFUELS

Looking to the auto fuel crunch, alternate sources have been explored
which produce low pollution; keeping this in view, the Indian Government
has announced the National Policy on Biofuels in 2009.% The policy
aims to mainstream biofuels, particularly in the transportation and
energy sectors in the coming years. It will push for optimal development
and utilisation of indigenous biomass feed stocks, and proposes an indic-
ative target of 20 per cent blending of biofuels (which includes biodiesel
and bioethanol) by 2017. Accordingly a National Biofuel Coordination
Committee, headed by the Prime Minister, will be set up to provide pol-
icy guidance, while a Biofuel Steering Committee headed by the Cabinet
Secretary will be set up to achieve the objectives.
States will play an important role in the planning and implementa-
tion of the biofuel programme. In addition to policy development, States
would be responsible for deciding on land use, land allotment and the
infrastructure to support projects across the entire value chain. The gov-
ernment has plans to initiate appropriate fiscal and financial measures that
will promote biofuel cultivation. The policy proposes intensive research
and development work right from the plantation stage to biodiesel pro-
duction and processing. This includes improving the efficiency of end-use
applications and utilisation of by-products like oil cake and glycerin.

4. ECOMARK SCHEME
The Ecomark Scheme of India was launched in 1991 by the Indian
Government”. It has adopted a logo — earth pot, which is biodegrad-
able. The “Ecomark” label is awardedto consumer goods which meet
the specified environmental criteria and the quality requirements of
Indian Standards. The Indian Government launched the eco-labelling
scheme known as “Ecomark” to increase consumer awareness and for
easy identification of environment-friendly products. Any product which
is made, used or disposed of in a way that significantly reduces the harm
74. The Union Cabinet approved it on 24-12-2009.
75. Resolution No. GSR 85(E) dt. 20-2-1991, Ministry
of Environment, Forest and
Wildlife (the Ecomark scheme). The CPCB is a member
of the Global Ecolabelling
Network (GEN).
|
10] AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 345

it would otherwise cause to the environment, is considered as environ-

ment-friendly product. This Ecolabel is part of the Global Ecolabelling
Network (GEN).

Ecomark logo

The description of the logo by the scheme is as follows:

An earthen pot has been chosen as the logo for the Ecomark Scheme in India.
The familiar earthen pot uses a renewable resource like earth, does not pro-
duce hazardous waste and consumes little energy in making. Its solid and
graceful form represents both strength and fragility, which also characterises
the ecosystem.
A list of products having Ecomark is appended as Appendix 1 of the
scheme. To improve the quality of the environment and to encourage the
sustainable management of resources, clause 3 of the Ecomark Scheme
contemplates establishment of the following three committees which
would oversee the work related to criteria development for each product
category and the award of the Ecomark:
1. A Steering Committee set up under the Ministry of Environment
and Forest to determine the product categories and formulate
strategies for promotion, implementation, future development and
improvement of the Ecomark Scheme.
2. A Technical Committee set up under the CPCB to identify criteria
and inter se priority between the criteria; and to identify specific
product for the Ecomark Scheme.
3. Bureau of Indian Standards to assess and certify the product and
draw up a contract with the manufactures for use of Ecomark label
on payment of fee.
The licence is granted initially for a period of one year which is renewa-
ble for a period of two years at a time subsequently on the basis of per-
formance of the unit in the preceding year(s). Thus, it is a laudable step to
improve the quality of the environment and to encourage the sustainable
management of resources.
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 CHAPTER 11
Forest and Conservation Laws

Forests' are a major natural resource and are also recognised as a col-
ourful expression of nature. They are also recognised as guardians and
protectors of the wildlife of the country. Forests are valued not only
for various kinds of flora and fauna but also for minerals, watersheds,
cradles of rivers, check on desertification, as an important recreational
resource and for their scenic beauty. Therefore, management of forests is
an essential aspect of the protection of the environment. It also becomes
more important as the trees are known as pools or banks of carbon diox-
ide. Cutting of trees releases carbon dioxide into the atmosphere which
has largely contributed to the greenhouse effect or global warming. This
global warming, in turn, has resulted in the melting of ice-caps and rise
in the sea level; a change in a climate patterns has also been experi-
enced all over the world. The United Nations Environment Programme
(UNEP) has recently declared that because of the effect of greenhouse
gases, the year 2003 has been found to be the hottest in the last 50 years.
During the last century, forests have been cut at rates unequalled in
the world and they are disappearing at an alarming rate. In India, it has
been claimed that we have got vegetation cover over 19 per cent of the
total land area as against the accepted ideal of 33 per cent in India and
over 40 per cent internationally. Thus, vegetation cover is much less than
required.

1. HISTORICAL PERSPECTIVE
It has been rightly observed that the culture and civilization of our coun-
try have developed on the river banks and amidst the dense forests. The
Rigveda and the other Shrutis make it abundantly clear that often people
saw the images of God in nature (trees, plants, animals, etc.) and treated
them as divine objects with great devotion and love. Some trees were

1. The term “forest” is derived from a Latin word “foris” which mean “outside” prob-
ably indicating outside the dwelling house.
348 ENVIRONMENTAL LAW [CHAP.

declared as sacred (e.g., peepal, banana, tulsi, amla, etc.) and this, in turn,
automatically worked to protect the forests from the onslaught of man-
kind. Trees have been eulogised to the extent that one of the Upanishads
has been named as “Brihadaranyaka Upanishad”. In the Agni Puran, it
has been observed that a person who does the sacred work of plantation
provides salvation even to those ancestors who died 3000 years ago. That
person enjoys the pleasures of heaven for as many years as the trees bene-
fit living beings with their pleasant shadow and fruits full of nectar. Even
during the Vedic period (3000-4000 BC), tree worship was a practice
popular in the society. Rigveda mentions various attributes of God in
trees. Plants were regarded as possessing divine qualities with reference
to their healing powers (Rigveda 10.97). Moreover, plants were deified
as God Varuna, one of the most popular deities of Vedic times. In the
Matsya Purana, there is a verse:
Dashkoop Samavaethi Dashvapi Samshadah
Dashhed Samah putra dash putra Samo drama
(one pond is equal to 10 wells, one son is equal to 10 ponds and one tree
is equal to ro sons).
Manusmriti? also declares the cutting of green trees an “offence”.
Kautilya* has provided in his Arthashastra that it is the duty of the king
to guard, upkeep and plant forests for the kingdom. He also prescribes
that it is the duty of the king to plant forests which grant safety to ani-
mate and inanimate objects.
Emperor Ashoka‘ is also known for his work to protect forests and
for planting trees along public roads. The edicts issued by him include
“forests must not be burned”, and “trees shall be planted on both the
sides of the roads”.
The above discussion amply demonstrates that Indians had a culture
of protecting and guarding the forests and it was a social responsibility
of the individuals as well as the rulers to maintain and protect them.
And, that India had a culture of worshiping nature in all its glory.

1.1 British period

Till the beginning of British rule in India, the forests were well protected
and guarded by the people and particularly by the tribal people (forest
dwellers). But during the British period, the rulers were having an indif-
ferent attitude towards forests and during the rgth century, there was a
“fierce onslaught on Indian forests”. The forests were treated as a source
of revenue for the government and not as a natural resource. During
2. Manusmriti, XI: 65: VIII: 330.
3. Kautilya, Arthashastra, Book I Ch. II, Book VII Ch. XI, XIII.
4. King Ashoka ruled in the 3rd century BC.
11| FOREST AND CONSERVATION LAWS 349

this time most of the forests were destroyed in the name of agriculture
and the need for more land for cultivation. Later on, forests were exten-
sively cut to meet the needs of timber for ship building, iron smelting
and tanning. Oak forests were cut and shipped to England for the use of
English Royal Navy as the “safety of the empire depended on its wooden
walls”. The Indian teak of Malabar was found most suitable for ship
building and teak forests started vanishing slowly and systematically.
Thus, British rule in India (1600-1947) was virtually a period in which
forests were vastly damaged and destroyed and the vegetation cover
started shrinking. During both the World Wars, Indian forests served the
imperial army to a great extent and Indian timber was cut and supplied
by the British to England, Egypt, Iraq, Middle Eastern countries and the
Persian Gulf. Moreover, the Timber Directorate was set up in India to
supply timber.
To serve the imperial cause, the first Forest Act was enacted in 1865
(but not to guard forests) and the Forest Department was established.
The main purpose of this Act was to facilitate the acquisition of the
Indian forest areas to supply timber for railways and to establish the
claim of the State on the forest land. But the Act did not have provisions
to protect the existing rights of the people living in the forests. Basically,
this Act was meant to regulate forest exploitation, and the management
and preservation of forest resources. Soon, it was found that the provi-
sions of the Act were not effective as it lacked deterrent punishment and
gave only meagre powers to the forest officers. Therefore, after a great
debate, a new Forest Act was passed in 1878 which claimed absolute con-
trol and ownership rights of the State on forests. It also recognised the
rights of the nomads of the forests and of other nearby dwellers (custom-
ary rights) in various areas. Such rights included the rights of villagers in
Himalayan region, tribals in Chhattisgarh, Santhals in Midnapore, Bhil
in Rajasthan and Madhya Pradesh and others to grazing, collecting fuel
and fodder, collecting fruits and medicinal plants and herbs, etc., in the
forest without having any proprietary rights.

1.1.1 Forest Act, 1927°

To make forest laws more effective and to improve the Forest Act, 1875,
a new comprehensive Forest Act was passed in 1927 which repealed all
the previous laws. The Act consists Of 86 séctions divided into 13 chap-
ters. The main objects of the Act are i) to’Consolidate the laws relating
to forests; 2) regulation of and the transit of forest produce; and 3) to
levy duty on timber and other forest produce. The term “forest” has not

5. The Act came into force on 21-9-1927.

 ENVIRONMENTAL LAW [CHAP.>

350

been defined in the Act. But the Allahabad High Court’, while defining
the term, adopted the definition provided by the Food and Agriculture
Organisation (FAO) according to which forest means “all lands bearing
vegetative association demarcated by trees of any size, exploited or not,
capable of producing wood or other forest products or exerting an influ-
ence on the climate or on the water regime or providing shelter for live-
stock and wildlife”. In T.N. Godavarman Thirumulpad (98) v. Union of
India’ (T.N. Godavarman), the Supreme Court has made it clear that the
term forest must be understood according to its dictionary meaning and
by adopting a practical approach; an area measuring ro hectares or more
having an average number of 200 trees per hectare ought to be treated as
forest. It covers all statutorily recognised forests— whether reserved or
protected and it also includes all area recorded as forests in the govern-
ment record irrespective of the ownership—whether government owned
or privately owned. To decide whether a land is a forest or not, mod-
ern technologies like ERDAS Imagine and Linear Imaging Self Scanning
Sensor (LISS IIE) can be used. This Act was enacted at a time when envi-
ronmental problems had not assumed threatening dimensions as they
have today. Environmental hazards were minimal and quite negligible.
Various chapters of the Act provide for 1) reserved forests [Ss. 3-27];
2) village forests [S. 28]; 3) protected forests [Ss. 29-34]; 4) control of
forests not under the State; 5) duty on timber and other forest produce
[Ss. 39-40]; and 6) control on timber and other forest produce in transit
[Ss. 41-44]. Chapter IX of the Act provides for penalties and procedure.
Section 70 of the Act also makes the Cattle Trespass Act, 1871 applicable
to reserve forests or any part of the protected forests —as a sequel to this,
fines for cattle trespass have also been provided.* The Act also empow-
ers the State for requisition of any private forest for any purpose under
the Act, which shall be deemed to be “needed for a public purpose”
within the meaning of Section 4, Land Acquisition Act, 1894. Many
States have passed various Acts to take over the private forests from the
private owners.’
Section 2, Forest Act, 1927 has defined certain terms. For example, the
word “cattle” includes elephants, camels, buffaloes, horses, mares, geld-
ings, ponies, colts, fillies, mules, asses, pigs, rams, ewes, sheep, lambs,
goats and kids. The word “forest produce” includes timber, charcoal,
caoutchouc, catechu, wood-oil, resin, natural varnish, bark lac, mahua
flowers and seeds, kuth and myrabolams... and trees and leaves, flowers,
fruits and other parts of trees, plants (grass, creepers, reeds and moss),

6. Yashwant Stone Works v. State of U.P., AIR 1988 All 12x.

7. (2006) 5 SCC 28: AIR 2006 SC 1774; also see, Maa Dasabhuja Furniture Unit v.
State of Orissa, AIR 2006 Ori 63.
Siow
9. See, Kumari Varma v. State of Kerala, (2006) 6 SCC 505: AIR 2006 SC 3048.
 11| FOREST AND CONSERVATION LAWS 351

wild animals and all or any part or produce of such animals, peat, sur-
face soil, rock and minerals including limestone, laterite, mineral oils
and other products of mines and quarries. It has also been made clear
that “tree” includes palms, bamboos, skumps, brushwood and canes
[S. 2(7)]. In State of Kerala v. P.S. Mathew", the “forest produce” does
not include “ivory”, therefore, vehicle used in transporting ivory cannot
be confiscated.
The following activities are prohibited in reserved forests: 1) clearing
of forests; 2) setting fire or leaving any fire burning, or keeping or carry-
ing any fire; 3) trespassing or pasturing cattle; 4) causing damage by neg-
ligence in felling any tree or cutting or dragging any timber; 5) felling,
girdling, loping or burning any tree, stripping off the bark or leaves from
any tree; 6) q g stone, Seon lime or charcoaL.or removing any
forest produce; ki cleaning or breaking up any landé 8) hunting, shoot-
\.
ai”
~/ing, fishing, poisoning. ter or setting traps or snares; and 9) killing or
j o
catching e ephants [. [Seez.
The Supreme a in T.N. Godavarman Thirumalpad v. Union of
India'' (T.N. Godavarman I1) reiterated its earlier direction that prior
approval of the Central Government is required for any non-forest activ-
ity in “forest” area. Application received by the State Government should
be sent to the “Central Empowered Committee (CEC)”, who will grant
the licence. Further, if the consent has not been granted to establish saw-
mill in forest area, there is no presumption that it may be deemed to have
been granted. In this case, sawmills applied for licence and deposited
required fee, but no licence was issued to them within prescribed time
limit of 60 days. Following the direction of the Supreme Court, the gov-
ernment constituted the CEC by notification dated 3 June 2002. When
these sawmills applied to CEC for renewal of licence, the CEC observed
that since these sawmills had no licence, these cannot be permitted to
continue in forest area.
The power of the State Governments to regulate the transit of tim-
ber and other forest produce provided under Section 42 was challenged
in State of Tripura v. Sudhir Ranjan Nath’? as violative of freedom of
trade and commerce. The Supreme Court declared that the Forest Act is
primarily enacted to preserve, protect and promote the forest wealth of
the country and collection of revenue is a regulatory measure to achieve
this objective. Similarly, to regulate cutting, removal, transport and pos-
session of forest produce is in the interest of the State and its people.

10. (2012) 4 SCC 457: (2012) 2 SCC (Cri) 475: AIR 2012 SC 1502. The case was filed
under Ss. 2(f), 61-A, 52 and 69, Kerala Forest Act, 1964.
11. (2002) 9 SCC 502 (dt. 9-5-2002). Quoted in Ajendra Singh v. State of U.P., AIR 2006
All 227.
12. (1997) 3 SCC 665: AIR 1997 SC 1168; also see, T.N. Godavarman Thirumulpad v.
Union of India, (2001) 10 SCC 645: AIR 2000 SC 1636.
 352 ENVIRONMENTAL LAW [CHAP.

Therefore, control of the State over forests and over collection of forest
produce, and movement of drift and standing timber is a right in conso-
nance with the provisions of the Constitution. Recently, the Bihar High
Court declared in Sarup Singh & Co. v. State of Bihar’? that there cannot
be any movement or transport of timber or other forest produce without
any transit permit. Once the timber is brought to the State from another
State, transit permit rules would apply.
A deep investigation of the Act reveals that the Act never aimed to pro-
d
to 1) regulate
_te¢t the vegetation cover of India but was passe the cut-
re a he

‘produce,'* It mainly aimed at supplying raw material for forest based

industries. Forests were accepted as a significant factor in eco-balance
and environmental preservation. It is necessary to point out here that
this revenue oriented attitude towards the forest has continued even after
independence. Therefore, this Act of 1927 failed miserably to protect the
forests from unscientific and unplanned exploitation.'*
The Act of 1927 also denied common ownership or occupancy rights
or property rights to the occupants of land/tribals. These forest dwellers
living there for generations were not given any right over the forest land
and forest produce. Rather forests were declared to be the property of
the government and in case of dispute, the “Forest Settlement Officer”
would have full rights to determine the extent of their rights to grazing,
water resources, cultivation or shifting cultivation, and forest produce in
the forest. The Forest Settlement Officer had to notify, hear and decide
the claims.
Banwasi Seva Ashram v. State of U.P.'* raised an important question
relating to the right of the State to notify an area as a “reserved forest”
and its effect on the people (Adivasis) already living there. In this case,
the State Government declared the area of Dudhi in Robertsganj tehsil
to be a reserved forest under Section 20, Forest Act. Some Adivasis and
other backward people had been living inside this area for a long time.
A letter written by the Banwasi Seva Ashram about the rights of these
people, was treated as writ petition by the court. It was contended that
these people had been collecting forest produce, and using the forest for
the purpose of grazing and fuelwood, etc., for generations and now they

13. AIR 2001 Pat 36; see, Pawan Kumar Agarwal v. State of Orissa
, AIR 2001 Ori 91.
14. See, Chhatrapati Singh, Common Property and Common Pover
ty (OUP, Delhi 1986).
15. It was one of the reasons that the Forest (Conservation)
Act, 1980 was passed.
16. Banwasi Seva Ashram v. State of U.P., (1987) 3 SCC 304;
Banwasi Seva Ashram
v. State of U.P., (1992) 1 SCC 117; Banwasi Seva Ashram v. State of U.P., (1992)
2
SCC.263.
11] FOREST AND CONSERVATION LAWS 353

have been deprived of these rights which constituted their right to live-
lihood. Moreover, criminal cases of trespassing and encroachment were
registered against them. The State pleaded that the forest land had been
acquired to set-up a thermal power station and provide cheaper electricity
to the people. The court declared that the land which had been acquired,
already been acquired would not be part of the writ petition and gave
elaborate instructions as to how the interests of the ousted Adivasis and
landowners should be safeguarded. The court also directed that wide
publicity be given to this process and that an Additional District Judge be
appointed to exercise the powers of appellate authority in such matters.
The court did not protect the right of Adivasis and freed the land from
the ban on dispossession of the Adivasis. The developmental activity, 7.e.
the setting up of a thermal power station, was given priority in compar-
ison to the rights of the tribals.
In Ishwar Chandra Gupta v. State of U.P.’, the Allahabad High
Court made it clear that the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 is in addition
to the Forest Act, 1927 and the two Acts run not derogatory to each
other. These two Acts run in different field and there is no inconsistency
between provisions of these Acts. In this case, petitioners were running a
shop in forest area since 1928 and they could not prove themselves as for-
est dweller, or Scheduled Tribe or traditional forest dweller. Therefore,
they were denied the right to continue their possession over forest land
with their non-forest activity.
The penalty provisions of the Act prescribe a maximum punishment
of six months imprisonment or a fine extending to #500, or both. The
provision of such meagre punishment for those causing serious damage
to the wealth of the nation, is further evidence of the ineffectiveness of
the Act. Only Section 63 of the Act provides for a punishment of impris-
onment which could extend to two years, or fine, or both for counterfeit-
ing or defacing marks on trees and timber and altering boundary marks
of any forest or waste land.
The amendment of the Act in 1982 has given greater powers to the
domiciled people of the forest. Previous to 1976, the States had the power
to legislate on forests, but the 42nd Constitutional Amendment in 1976

WY Ate =

17. AIR 2011 All 88. |

18. “Forest” was deleted from the State List and included in Concurrent List, Schedule 7,
List III, Item 17-A.
19. Art. 48-A of the Indian Constitution.
354. ENVIRONMENTAL LAW [CHAP. >

In T.N. Godavarman (98)°, the petitioner challenged the allotment

of land of 15 hectares by way of lease to M/s Maruti Coal and Power
Ltd. for setting up coal washery. It was claimed that the land leased out
was a forest land, which could not be used for non-forest purpose, 7.é.
for coal washery. The court reiterated that the definition given to the
term “forest” must be understood according to its dictionary meaning.
Thus, it covers all statutorily recognised forests, whether designated as
reserved, protected or otherwise, for the purpose of Section 2(1), Forest
Act, 1927. Taking a practical approach, “an area measuring ro hectares
or more having an average number of 200 trees per hectare ought to be
treated as forest”. Moreover, it includes any area recorded as forest in
the government record irrespective of the ownership. The matter related
to the disputed land was referred to the CEC who gave three reports on
three different occasions, and declared that the land in question was a
non-forest land. Therefore, it was declared that the petitioner did not
come to the court with clean hands but with ulterior motives, the court
dismissed the petition with costs and also warned the petitioner not to
use “recuperate language” in the pleadings.
With reference to conservation, preservation and protection of forests
and ecology and use of forest for non-forest purpose, following princi-
ples were laid down by the Supreme Court:
1. The principal aim of the forest policy is to ensure environmental
stability and maintenance of ecological balance including atmos-
pheric equilibrium which are vital for sustenance of all life forms,
human, animal and plant. The derivation of direct economic bene-
fit must be subordinated to this principal aim.
The forest policy has a statutory flavour. The non-fulfilment of
the aforesaid principle would be violative of Articles 14 and 21 of
the Constitution.
2. Compensatory Afforestation Fund Management and Planning
Authority (CAMPA) created by the Ministry of Environment and
Forests (MoEF) with the occurrence of the CEC was essential. It
shall allocate money to the States for their site specific schemes out
of Compensatory Afforestation Fund (CAF). This fund has been
created having regard to the principles of inter-generational justice.
3. If it is at all necessary for economic development to use forest
for non-forest purpose, then before permission is granted by the
CEC, there should be some scheme (including short term as well

20. (2006) y SCC 28. About 102 orders have been pronounced by
the Supreme Court in
this case for the protection and preservation of forests. The editors,
Supreme Court
Cases (SCC) have saluted the Supreme Court for truly dischargin
g its duty as the
sentinel on the qui vive”. The cases have been reported by SCC
arranging them
chronologically.
11] FOREST AND CONSERVATION LAWS 355

as long term measures) for regeneration of forests. Constitution of

CAMPA under Section 3(3), Environment (Protection) Act, 1986 is
a laudable step in this direction.
4. Money received towards “compensatory afforestation”, additional
compensatory afforestation, penal compensatory afforestation, net
present value (NPV) of forest land, catchment area, treatment plan
fund, etc. shall be deposited in CAF.
5. Fund received from the user agencies shall be used exclusively for
undertaking the conservation activities.
6. Artificial regeneration activity must be started at the earliest. Local
and indigenous species must be used in plantations.
7. Independent system of concurrent monitoring and evaluation
should be evolved.
8. Forest management planning involves a blend of ecological, eco-
nomic and social systems with the economic and social sides of
planning.
Levying of appropriate NPV on the user agency of such diverted forests
land as the price of such forest use is legal. All projects for use of forest
for non-forest purpose shall be required to pay NPV except government
projects like hospitals, dispensaries and schools.
In a recently decided case, the Supreme Court allowed the application
to fell ro41 khair trees, subject to the condition that the applicant shall
provide funds to the Forest Department of the State of J&K for planting
and maintenance of khair plants, at least ten times the number of trees
proposed to be felled for execution of project.”'
Similarly, the court permitted the use of forest land for the construc-
tion of Express Metro Link to airport in Delhi with the condition that
“the compensatory afforestation” should be carried out near the impact
area. And further it was suggested that translocation, if feasible, of the
trees be done instead of felling of trees.”
It was further directed that NPV of the sale of trees must be deposited
in Compensatory Afforestation Fund. Further, 5 per cent of the project
will also be deposited for the Management Board for conservation and
development of the area.”*
This amendment has also made it a fundamental duty of the citizens
“to protect and improve the natural environment including forests, lakes,
rivers and wildlife... .””*

21. T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 96.

22. T.N. Godavarman Thirumulpad v. Union of India, (2012) 13 SCC 438.
23. T.N. Godavarman Thirumulpad v. Union of India, (2013) 11 SCC 466; Centre for
Environmental Law, WWF-India v.Union of India, (2013) 11 SCC 630; and also
T.N. Godavarman Thirumulpad v. Union of India, (2013) 8 SCC 228.
24. Art. 51-A(g).
 356 ENVIRONMENTAL LAW [CHAP.

Many States have passed State Forest Act to manage and preserve the
forest cover in India, like the Kerala Forest Act, 1961; the Karnataka
Forest Act, 1963; the Jammu & Kashmir Forest Act, 1930; etc.

1.2 After independence

1.2.1 Forest (Conservation) Act, 1980 (FCA)
As mentioned above, the Central Government got the powers to make
laws on forests in 1976. Following this, the Union Government passed
the Forest (Conservation) Act, 198075 (FCA) which is a landmark in
the history of the protection of forests. Mainly, this Act was passed to
remove the difficulties of the Forest Act, 1927 and to conserve the vege-
tation cover of the nation.
This historical Act consists of only five sections but has proved very
effective and successful in the conservation of the forests.
The main object of the Act is “to provide for the conservation of forests
and for matters connected therewith or ancillary or incidental thereto”.
Conservation of forests is necessary as deforestation causes ecological
imbalance and leads to environmental deterioration. Deforestation has
been taking place on a large scale in the country and it has caused wide-
spread concern. Thus, the Act has been passed to conserve the forests
and check deforestation effectively.
Section 2 of the Act places restrictions on de-reservation of forests or
use of land for “non-forest purposes”. It provides:
...no State Government or other authority shall make, except with the
prior approval of the Central Government, any order directing—
(i) that any reserved forest (within the meaning of the expression
“reserved forest” in any law for the time being in force in that State)
or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any
non-forest purpose;
(wi) that any forest land or any portion thereof may be assigned by way
of lease or otherwise to any private person or to any authority, cor-
poration, agency or any other organisation not owned, managed or
controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees
which have grown naturally in that land or portion for the purpose of
using it for reafforestation.
The : Supreme Court has | also defined the term “forest”. In TON!
CASE PILOT Godavarman Thirumulp ¥. Union
ad6fTidia®’ (T.N. Godavarman III ),
the court declared that the word “forest” must be understood according
25. The Act came into force on 27-12-1980.
26. (1997) 2 SCC 267, 269; also see, Maharashtra Land Development Corpn.
vy. State of
Maharashtra, (2011) t5 SCC 616.
11] FOREST AND CONSERVATION LAWS 357

to its dictionary meaning. This description cover all statutorily recog-

nised forests, whether designated as reserved, protected or otherwise for
the purpose of Section 2(/) FCA. The term “forest land”, occurring in
Section 2, will not only include “forest” as understood in the dictionary
sense, but also any area recorded as forests in the government record
irrespective of the ownership. This description of forest has been used in
many cases.
The court has made it clear that Section 2 is prospective in its opera-
tion and any regularisation order on or after 25 October 1980 cannot be
passed without the prior approval of the Central Government.’

1.2.1.1 Non-forest purpose

The term for “non-forest purposes” has been defined as breaking up or
cleaning of any forest land or portion thereof for
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing, plants,
horticultural crops or medicinal plants; or
(b) any purpose other than reafforestation.
Section 2 further clarifies that the non-forest purposes do not include
any work relating or ancillary to conservation, development and manage-
ment of forests and wildlife, namely, the establishment of check-posts, fire
lines, wireless communications and construction of fencing, bridges and cul-
verts, dams, water holes, trench marks, boundary marks, pipelines or other
like purposes.
If there is a violation of Section 2 by anyone, he will be punished with
simple imprisonment for a period which may extend to 15 days. [S. 3-A]
The Rajasthan High Court in Om Prakash Choudhary v. State of
Rajasthan**® made it clear that construction of “interpretation centre”
in forest area is not covered under the term non-forest purpose, as the
National Wildlife Action Plan prepared in 1982 makes a provision for
establishment of model interpretation centres at Wildlife Units for edu-
cating the visitors and creating awareness in them “about the wildlife”.
Conservation of wildlife and protection of forest is possible only when
the people are alive to the fact that conservation, protection and devel-
opment of wildlife and forests are essential for the sustenance of human
life and they are part of nature’s great plan in which they have a role to
play. Therefore, there was no need to seek prior approval of the Central
Government.
In Vilas Shankar Donode v. State of Maharashtra’, the Bombay High
Court declared that use of forest land for construction of road was a

27. Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373.

28. AIR 2005 Raj 18.
29. AIR 2008 Bom ro.
 [CHAP.
358 ENVIRONMENTAL LAW
the court
non-forest purpose. Construction was declared illegal and
the court
ordered to close the road and get the site reforested. Further,
nd-
declared that the cost of reforestation, cost of damage to forest, expe
ges be
iture for laying the electric line in forest area and incidental char
e
recovered from the MLA of the ruling party, who exercised his influenc
on the Forest Department and got the road constructed and electric line
laid on the forest land.
Similarly running a shop over forest land since 1923 is a non-forest
activity. To continue the business activity in the forest for a long period
does not entitle them to continue it.*°
The Supreme Court in T.N. Godavarman Thirumulpad v. Union of
India?! observed that establishment of sawmills has always been treated
as “non-forest purpose”. It has also been clarified by the court that unli-
censed sawmills established prior to 16 July 1981 cannot be permitted
to operate, even if it is located 150 meters from nearby forest.” All min-
ing activities inside national parks or wildlife sanctuary are “non-forest”
activity and cannot be permitted.”

1.2.1.2 Constitution of Advisory Committee

The Act has also provided that the Central Government may constitute an
Advisory** Committee to advise the government with regard to 1) grant
of approval under Section 2; and 2) any other matter connected with
the conservation of forests which may be referred to it by the Central
Government.

1.2.1.3 Judiciary and the implementation of the Act

The Act has put a blanket ban on the use of forest land or any part
thereof for non-forest purposes and made it a mandatory requirement to
seek prior approval of the Centra! Government to make use of forest land
for non-forest purposes.
The Supreme Court has made it clear in T.N. Godavarman
Thirumulpad v. Union of India® that the term “forest” in the FCA coy-
ers not only forests but also forest land, and observed that forest is no
longer res integra. Therefore, it also covers “dry cropland”.
The court has also made it clear that even if a licence has been granted
for an industry by a Ministry of the Central Government, prior approval

30. Ishwar Chandra Gupta v. State of U.P., AIR 2011 All 88.
31. (1997) 2 SCC 267.
32. T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 367.
33. T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 297.
34. $. 3. Number of the members has not been fixed.
35. (2oo1) 10 SCC 645: AIR 2000 SC 1636.
1r| FOREST AND CONSERVATION LAWS 359

of the Central Government is necessary after the matter has been con-
sidered by the Advisory Committee constituted under the Act of 1980.°°
The totally indifferent attitude of the State Governments towards envi-
ronmental consideration also led to the passing of the FCA. The Silent
Valley case*’ is a significant instance of such attitude. This case is related
to an area in the Western Ghats of India in the State of Kerala known as
Palghat which contained India’s largest tropical evergreen forests with at
least 50 million years of evolutionary history and diverse and complex
flora and fauna. A number of endangered plants and animals lived there
and the forests were performing the work of maintaining the hydrologi-
cal balance of the area, averting floods, preventing soil erosion, etc. The
State of Kerala started constructing a hydroelectric project in this Silent
Valley area. Experts including scientists attached to the Department of
Science and Technology, Indian Government, warned against the pro-
posed plan. They warned that the deforestation was bound to interfere
with the balance of nature, affect climatic conditions and destroy the
rarest of rare flora and fauna, prevent research in medicine, pest con-
trol, breeding of economic and other varieties of plants. The State of
Kerala pleaded the necessity for more and cheap electricity for the poor
people of the State. The Kerala High Court accepted the stand of the
State Government and gave a judgment against the environmentalists
and conservationists. It also did not think it proper to evaluate the scien-
tific study of the project and concluded its judgment with the following
words:
It is not for us to evaluate these (scientific, technical, technological and eco-
logical)** considerations again as against the evaluation already done by the
Government. It is enough to state that we are satisfied that the relevant mat-
ters have received attention before the Government decided to launch the
project. We are not to substitute our opinion and notion on these matters for
those of the Government.
We find no reason to interfere. We dismiss these applications with no
order to costs.
The above judgment indicates the causal and callous attitude adopted by
the Kerala High Court which did not think it proper to go into the details
of the case at all. The court relied only on the governmental position and
did not examine the issue of whether there should be development at
the cost of environment. Therefore, the judgment was opposed by scien-
tists, environmentalists and non-governmental organisations throughout

36. Goa Foundation v. State of Goa, AIR 2001 Bom 318.

37. Not reported but text available in the article, L. Prasad, “Silent Valley Case: An
Ecological Assessment” in (1984) 8 Cochin University Law Review 128; Society for
Protection of Silent Valley v. Union of India, OP Nos. 2949 and 2025 of 1979,
decided on 2-1-1980 (Ker), judgment was pronounced on 2-1-1980 by V.P. Gopalan J.
38. Supplied by the author.
 360 ENVIRONMENTAL LAW CHAR.

the country. Ultimately, the then Prime Minister of India, Mrs Indira
Gandhi appointed a committee under the Chairmanship of Prof. M.G.K.
Menon in August 1980, which submitted its report in 1983 and as a
result the Silent Valley project was scrapped in November 1983. |
In another case, the Bodhghat Hydroelectric Project was started in
Bastar in the State of Madhya Pradesh and it was alleged that the State
Government had not given thought and due weightage to issues like the
economy, culture and ecology of the area, the submergence of a vast
area, the question of rehabilitation of the displaced persons and the likely
gain from the project in contrast to the devastation of the ecology. Noted
environmentalists, social workers and forest conservationists opposed
the project, but a large tract of land was deforested without obtaining
clearance from the Central Government. At last, the Prime Minister
directed the Chief Minister of the State to abandon the project and take
action against erring State Officers who were involved in the deforesta-
tion process.°*’
We have to examine the application of the forest laws in the back-
ground of these incidents of high-handedness of the State Governments.

1.2.1.4 Section 2: a non-obstante clause

Section 2 FCA begins with the words
Notwithstanding anything contained in any other law for time being in
force in a State, no State Government or other authority shall make, except
with the prior approval of the Central Government, any order...of any
nature enumerated in the provision. [S. 2]
That means it rules out any non-forest activity in forest land without
the prior approval of the Central Government. This prior approval of
the Central Government is a condition precedent.*° It is also applicable
in a case of renewal of the existing lease. The Supreme Court in Rural
Litigation and Entitlement Kendra v. State of U.P.*! (RLE case) made it
clear that
Whether it is a case of first grant or renewal following exercise of option by
the lessee, the compliance of Section 2 of the Conservation Act is necessary
as a condition precedent.
The above observation has been quoted by the courts in various other
pronouncements.” It has further been made clear by the court that
the
39. See, N.K. Singh, “P.M. asks M.P. Government to punish
officers for deforestation”
11-3-1986 Indian Express.
40. See, T.N. Godavarman Thirumalpad v. Union of India,
AIR 2003 SC 724.
41. 1989 Supp (1) SCC 504: AIR 1988 SC 2187.
42. See, Nature Lovers Movement v. State of Kerala, (2009
) 5 SCC 373; Ambica Quarry
Works v. State of Gujarat, (1987) 1 SCC 213: AIR 1987
SC 1073; T.N. Godavarman
Thirumalpad v. Union of India, (2002) 10 SCC 606: AIR
2003 SC 724.
11] FOREST AND CONSERVATION LAWS 361

grant of renewal is a fresh grant and must be consistent with law.*? The
clearance from the Central Government is for five years only. No min-
ing Operation can commence without obtaining environmental impact
assessment and prior peemeeion of the government. "
In Rural Liti Entitlement Kendra v. State of U.P.*°, a pub-
lic letter was written ietacs aha iia and unscientific mining activ- CASE PILOT
ity which was causing damage to the ecology of the Mussoorie and
Dehradun hill forests. It was accepted as a writ petition under Article 32
of the Constitution. The court also referred to Section 2 of the FCA in
its pronouncement.
In T.N. Godavarman Thirumalpad v. Union of India*®, the Kudremukh
Iron Ore Co. Ltd., which was working in the Kudremukh National Park,
applied for the renewal of the lease for a period of 20 years. This Forest
National Park was declared to be a reserved area in 1960 and 1987 under
a notification issued under Section 35(1), Forest Act, 1927. To solve the
dispute, a Forest Advisory Committee (FAC) was set up under Section 3
FCA which recommended that mining may be allowed for a period of
four years, i.e. up to 2005, up to which the company can exhaust the
already broken up area. The company was already working in the park
area before the commencement of the FCA. The Supreme Court declared
that the recommendation of the FAC be accepted. The court ruled that
whether it is a case of first grant or renewal, the compliance of Section 2
FCA is necessary as a condition precedent.
In T.N. Godavarman III*’, the Supreme Court has already observed
that a forest includes the area noted in the government records as for-
est, irrespective of private ownership or State ownership. Any non-forest
activity within such areas is violative of the FCA. The running of saw-
mills of any kind is a non-forest activity which must be prohibited. No
sawmills should be permitted within a distance of 8 kms from the bound-
ary of the demarcated forest area. Moreover, no State can gave licence
for mining without the prior approval of the Central Government. All
such ongoing activities must be stopped by the State Government.
If licenced sawmill is located at a distance of 8 kms from forest area in
an approved industrial area, it can be permitted to run.”
1. Flagman T.N. Godavarman Thirumalpad a milestone case ech-
oed.—The judgment pronounced by the court in T.N. Godavarman II”

43. A. Chowgule & Co. Ltd. v. Goa Foundation, (2008) 12 SCC 646: (2008) 70 AIC 197.
44. M.C. Mehta v. Union ofIndia, (2004) 12 SCC 118.
45. (1985) 2 SCC 431: AIR 1985 SC 652.
46. (2002) 10 SCC 606: AIR 2003 SC 724.
47. T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267.
48. T.N. Godavarman Thirumalpad v. Union of India, (2010) 6 SCC 710.
49. (2002) 9 SCC 502. Followed in Ajendra Singh v. State of U.P., AIR 2006 All 227.
 |CHAP.
362 ENVIRONMENTAL LAW

ills, veneer
has become a guiding force in cases of grant of licence to sawm
were issued
and plywood mills within the forest area. Detailed directions
, wherein
by the Supreme Court on 29 April 2002 and 12 December 1996
assess
all the States were directed to constitute “expert committee” to
es.
sustainable capacity of sawmills and timber based industries in the Stat
-
It also directed the Central Government to constitute the CEC as envis
aged by Section 3, Environment (Protection) Act, 1986 to monitor the
implementation of the court orders and examine the application of the
sawmill owners. It must be remembered that the court had already made
it clear that any non-forest activity, mining activity and sawmills, within
the forest area without the “prior approval of the Central Government”
must cease forthwith. T.N. Godavarman II particularly dealt with the
sawmills, veneer and plywood operating in the forest areas.
The Uttaranchal High Court in Mohd. Hazi Rafeeq v. State of
Uttaranchal declared that any interpretation which dilutes rigour of
the restrictions imposed by the Supreme Court cannot be accepted.
Therefore, no sawmill can be located within ro kms, from existing for-
est. In such cases, to measure the distance, aerial distance will be consid-
ered and not the road distance.
The Supreme Court has made it very clear that the directions issued
by the court for disciplinary/criminal proceeding against erring forest
officers are prospective in nature. If the departmental enquiry has been
concluded in favour of the officer, before the decision of the Supreme
Court in the T.N. Godavarman case on 12 May 2001, the same cannot
be reopened thereafter. Any order violative of this order is liable to be
quashed.°!
2. Permission of the Central Government mandatory.—lIt has been
made clear time and again that if the lessee has applied for renewal
through proper authorities who also recommended the same, and no
rejection letter was received, the lessee is entitled to continue mining
within permissible limit. In this case**, the petitioner applied for the
renewal of the already granted stone mining lease. His prayer for renewal
was forwarded by the forest department to the Central Government for
the permission in reference to provisions of the Forest (Conservation)
Act, 1980. The petitioner did not receive any rejection order, but received
a memo of rejection of lease dated 26 October 1996 for second renewa-
ble lease for stone mining. Meanwhile, the lessee continued his work in
the broken area. The court found that the lessee was working in a bro-
ken area; therefore, he was permitted to continue his mining activity in

50. AIR 2006 Utt 18.

51. Muklesh Ali v. State of Assam, (2006) 5 SCC 485: 2006 SCC (L&S) 1 145.
52. Naresh Kumar Jain v. Commr., AIR 2006 Jhar 96.
11] FOREST AND CONSERVATION LAWS 363

broken area only. But the court cautioned that the petitioner should not
cause any damage to the trees of that area. He could continue to work
till he is communicated of the rejection of his application by the Central
Government. Ambica Quarry Works v. State of Gujarat? (Ambika
Quarry) was distinguished as in that case the State Government was of
the opinion that no renewal should be granted and in the present case,
the State Forest Department recommended for renewal of the mines to
the Central Government.
In Kamaljeet Singh Ahluwalia v. State of Bihar*’*, the Jharkhand
High Court made it clear that all mining activities within forest area
requires “prior permission” of the Central Government from the date
the FCA came into force, i.e. 25 October 1980. This clause is equally
applicable for carrying on mining activities even on the broken area
prior to 25 October 1980. It had already been clarified by the Supreme
Court in Ambica Quarry long back in 1987. Therefore, the petition
was dismissed.
In State of M.P. v. Kartar Singh Bagga®, the court made it clear that
even if patta has been granted, it does not include the permission to fell
trees, when the land in question falls within a “protected forest land”.
It was a clear violation of Section 2 FCA. The court further directed the
State Government to constitute a committee consisting of conservator of
forest and others to decide how many trees could be cut in the area.
In K. Balakrishnan Nambiar v. State of Karnataka*®, the court
held that renewal of lease also requires prior permission of the Central
Government, though the lease was granted in 1949. The government did
not extend the lease as the leased land was surrounded by thick forest.
3. No mining lease without the permission of the Supreme Court.—In
T.N. Godavarman Thirumulpad v. Union of India, the Supreme Court
has declared that the Ministry of Environment & Forest is directed to
ensure that no mining lease inside national parks or wildlife sanctuary is
approved under the Forest (Conservation) Act, 1980 without obtaining
specific permission from the Supreme Court.°’

1.2.1.5 No retrospective effect

The FCA® is prospective in its operation and not retrospective. The term
“prior approval” of Section 2(i) of the Act makes it clear that Section 2
53. (1987) 1 SCC 213: AIR 1987 SC 1073.
54. AIR 2006 Jhar 44.
55. AIR 2006 NOC 868 (MP).
56. (2011) 5 SCC 353: AIR 2011 SC 1628.
57. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 634; reiterated in
T.N. Godavarman Thirumulpad (77) v. Union of India, (2012) 13 SCC 436, at 436.
58. The Act came into force on 25-10-1980.
 LAW [CHAP.
364 ENVIRONMENTAL

forest
is inapplicable insofar as the occupations and encroachment of the
land made prior to the commencement of the Act, 7.e. 25 October 1980
are concerned. It is applicable only after this date.”
1. Public purpose (public benefit).—\n Goa Foundation v. Konkan
Railway Corpn.©, the Bombay High Court observed that when a project
had been undertaken by the Central Government only after the approval
of renowned experts from the area, the “prior approval” of the Central
Government required under Section 2, FCA was not necessary. But the
court has to strike a balance between the development and environmen-
tal pollution. In this case, a PIL was filed by an NGO to stall a project
undertaken by the Railways Central Government to lay down a broad
gauge railway line from Bombay to Kerala via Mangalore to be com-
pleted by the Konkan Railway Corporation Ltd. The court declined to
interfere with a project of such magnitude intended to meet the aspira-
tions and needs of the people of that area. It was declared by the court
that “While examining the grievance of possible adverse effect on envi-
ronment, the benefit which will be derived by large number of people by
the construction of rail-line could not be brushed aside.” Having this in
view, the PIL was dismissed by the court.
In Nature Lovers Movement v. State of Kerala*', the Kerala State
Government took a policy decision on 11 March 1992 to assign forest
land which had been in the possession and enjoyment of encroachers
prior to 1 January 1977. Evidently, the assignment of the forest land
related to land encroached upon prior to the commencement of the FCA,
i.e. 27 December 1980. The court declared that the FCA does not oper-
ate retrospectively, it “checks future deforestation”. Therefore, no prior
approval is required for past encroachment. It implies that this require-
ment is not applicable to the deforestation or encroachment which has
already taken place. The term “future” used in the section on objects/
research makes it amply clear that it is not applicable to pre-Act con-
travention. The court examined the intent of legislature by examining
legislative discussions, the objects and scopes of the Act, terms used in
the Act, and general rules of interpretation. Thus, it was declared by the
court that the State was entitled to divert forest land for non-forest pur-
pose prior to 1 January 1977, the date on which the ordinance on forest
conservation was promulgated.
The court also clarified that the forest land was given specifically for
agricultural non-forest use. Agricultural production also ensures food
security. Therefore, we cannot ignore the importance of agriculture and

S9. See, Nature Lovers Movement v. State of Kerala, AIR 2000 Ker 131.
60. (1994) 1 Mah LJ 21.
61. AIR 2000 Ker 131; Nature Lovers Movement v. State of Kerala, (2009) 5°SCC 573;
11] FOREST AND CONSERVATION LAWS 365

its impact on the socio-economic security of the State, while dealing

with the diversification of forest lands. The Kerala Land Assignment
(Regulation of Occupation of Forest Land prior to 1 January 1977)
Special Rules (1993), which were in question, also provided for a phased
compensatory afforestation scheme and to provide funds for the same.
Such a scheme properly regulated the exploitation of environment and
natural resources. The court declared that this means there is adjustment
and reconciliation between the preservation of environment and devel-
opment of economy.
In Tarun Bharat Sangh v. Union of India®*, the Supreme Court declared
that even if the mining operations were outside the “tiger reserved” forest
which has been declared as a protected area, prior permission from the
Central Government was necessary for mining activity.
In T.N. Godavarman Thirumulpad v. Union of India®’, the court
observed that for laying pipelines in Wild Ass Sanctuary of Gujarat, the
prior approval of the Central Government is essential since it happens to
be a forest land. Further it was declared that all forest clearance given
under the FCA may be uploaded on Ministry’s website to ensure public
accountability. It was reiterated that to avoid the controversy of forest
and non-forest land, the States must constitute Appraisal Committees
to identify the areas which are forest—notified, recognised or classified
under any law, and irrespective of the fact that the land of such forest
stands denuded, degraded or cleared. Thus, geo-referenced district for-
ests maps containing details of location and boundary must be prepared
for the purpose of the FCA.

1.3 Scheduled Tribe and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act, 2006°*
This Act was passed to recognise and vest the forest rights and occu-
pation in forest land in forest dwelling Scheduled Tribes and other
traditional forest dwellers who have been residing in such forests for
generations, but whose rights could not be recorded, to provide for a
framework for recording the forest rights so vested and the nature of
evidence required for such recognition and vesting in respect of forest
land. The Act is a welcome venture and a laudable step to restore the
rights of the indigenous people of India which form 8.08 per cent of
Indian population.

62. 1993 Supp (3) SCC 115.

63. (zor1) 15 SCC 685.
64. It was passed on 18-12-2006 and it came into effect on 31-12-2007. It consists of 14
sections. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Rules, 2007 have also been notified.
 366 ENVIRONMENTAL LAW HAP.
[CHA

This Act is the result of international developments® and some pro-

nouncements made by the Indian Supreme Court” to ascertain and recog-
nise the rights of indigenous people. The National Forest Policy of 1988,
Draft National Policy on Resettlement and Rehabilitation for Project
Affected Families on 17 February 2004, Draft National Development,
Displacement, Rehabilitation Policy of 2005 and draft of National Policy
on Tribal in 2004 also motivated the government to pass this legislation.
The draft of National Policy on Tribal in 2004 recognised that Scheduled
Tribes in general are the repositories of indigenous knowledge and wis-
dom which must be protected. The Indian Constitution also has pro-
vided provisions for the administration of Scheduled Tribe areas and to
protect their rights.°” Thus, the Act of 2006 is the result of constitutional
mandate and directives of the Supreme Court to protect and preserve
the rights of tribal people, their identity and culture and that they have a
right of self-governance and self-determination.
The present Act of 2006 has been passed with an object to
recognise and vest the forest rights and occupation in forest land in forest
dwelling Scheduled Tribes and other traditional forest dwellers who have
been residing in such forests for generations but whose rights could not be
recorded....
It was also declared by the government that “the historical injustice”
done to the indigenous people has been undone by passing this Act.** The
Act has acknowledged that
the recognised rights of the forest dwelling Scheduled Tribes and other tradi-
tional forest dwellers include the responsibilities and authority for sustaina-
ble use, conservation of biodiversity and maintenance of ecological balance
and thereby strengthening the conservation regime of the forests while ensur-
ing livelihood and food security of the forest dwelling Scheduled Tribes and
other traditional forest dwellers.

65. E.g., UN declared the year 1993 as International Year for World’s Indigenous People;
Resolution No. 107 of ILO; Johannesburg Conference of 2002; UN Declaration of
Rights of Indigenous People, 2007; UNDP Policy programme of 2001.
66. P. Rami Reddy v. State of A.P., (1988) 3 SCC 433: AIR 1988 SC 1626; Samatha
v.
State of A.P., (1997) 8 SCC 191: AIR 1997 SC 3297; Banwasi Seva Ashram v. State
of U.P., (1986) 4 SCC 753: AIR 1987 SC 374; Banwasi Seva Ashram v. State of
U.P.,
(1987) 3 SCC 304; Banwasi Seva Ashram v. State of U.P., (1992) 1 SCC 117;
Banwasi
Seva Ashram v. State of U.P., (1992) 2 SCC 202.
67. Arts. 29(1), 164(1), 244, 244-A, 275(1) and 338-A; also see, Schedu
les V and VI of the
Indian Constitution.
68. “And whereas the forest rights on ancestral lands and their
habitat were not ade-
quately recognized in the consolidation of State forests durin
g the colonial period
as well as in independent India resulting in historical injustice
to the forest dwelling
Scheduled Tribes and other traditional forest dwellers who
are integral to the very
survival and sustainability of the forest ecosystem.”
r1| FOREST AND CONSERVATION LAWS 367

It has also been observed that this Act is a social welfare or remedial stat-
ute. It protects wide range of-rights of forest dweller including customary
religious rights.°?
The forest rights have been granted to Scheduled Tribes” and other
traditional forest dwellers.’!
Section 3 of the Act has conferred 13 forest rights to the forest dwellers.
These rights include right to hold and live in forests; right to ownership,
access, to collect, use, and dispose of forest produce which has been tra-
ditionally collected; rights including community tenures of habitat and
habitation for primitive tribal groups and pre-agricultural communities;
right of access to biodiversity and community right to intellectual prop-
erty and traditional knowledge related to biodiversity and cultural diver-
sity; right to protect, regenerate, or conserve or manage any community
forest resource; right to settlement and conversion of forest villages, old
habitation; and right to “in situ” rehabilitation including alternative land
allocation.
The Supreme Court has also declared that the Gram Sabha is author-
ised to determine the “individual” and “community rights” of the forest
dwellers. Such rights include the religious or spiritual rights guaranteed
under Articles 25 and 26 of the Constitution. Rather, it is an obligation
on the Gram Sabha to safeguard and preserve traditions and customs of
the traditional forest dwellers, and their cultural identity, community
resources, etc.’*
The Supreme Court has also recognised the customary and cultural
rights of indigenous people living in Kalahandi and Rayagada districts
of Orissa in Orissa Mining Corpn. Ltd. v. Ministry of Environment and
Forest’*:
Section 4 of the Act has specifically recognised that if the indigenous/
tribal people are living in critical wildlife habitats of national parks and

69. Orissa Mining Corpn. Ltd. v. Ministry of Environment and Forest, (2013) 6 SCC
476, 503-
70. S. 2(c):
“forest dwelling Scheduled Tribes” means the members or community of the
Scheduled Tribes who primarily reside in and who depend on the forests or forest
lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist
communities.
71. S. 2(0):
“other traditional forest dweller” means any member or community who has
for at least three generations prior to the 13th day of December, 2005 primarily
resided in and who depends on the forest or forests land for bona fide livelihood
needs.
72. Orissa Mining Corpn. Ltd. v. Ministry of Environment and Forest, (2013) 6 SCC
476. Also see, Amritlal Nathubhai Shah v. Union Govt. of India, (1976) 4 SCC
108, which was referred in K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC
418, 489.
73. (2013) 6 SCC 476, 488.
 [CHAP.
368 ENVIRONMENTAL LAW y
ng will not be
sanctuaries and they are to be shifted, such migration/shifti
been prepared
allowed unless 1) a resettlement or alternative package has
fulfils the
and communicated that provides a secure livelihood ... and
free informed
requirements of the affected persons/communities; 2) the
resettlement
consent of the Gram Sabha of the area for the proposed
on at
has been obtained in writing; and 3) the facilities and land allocati
the resettlement location have been completed as per promised package.
Further, once such resettlement takes place, there shall be no subsequent
diversion from that place. Thus, for the first time, some right to set-
tlement and settlement procedure has been provided by the Act. The
forest rights shall be conferred free of all encumbrances and procedural
requirements, including clearance under the FCA, requirement of paying
the “net present value” and “compensatory afforestation” for diversion
of forest land, except those specified in this Act. Therefore, it can be said
that the Act is a welcome venture in this field, may be late but laudable
action.
The Gram Sabha shall be the authority to initiate the process for determin-
ing the nature and extent of individual or community forest rights or both
that may be given to the forest dwelling Scheduled Tribes and other tradi-
tional forest dwellers within the local limits of its jurisdiction under this Act
by receiving claims, consolidating and verifying them and preparing a map
delineating the area of each recommended claim in such manner as may be
prescribed for exercise of such rights and the Gram Sabha shall, then, pass a
resolution to that effect.”
Any person aggrieved by the resolution of the Gram Sabha may prefer
a petition to the “Sub-Divisional Level Committee (SDLC)” constituted
under sub-section (3) and the SDLC shall consider and dispose of such
petition. Any person aggrieved by the decision of the SDLC may prefer
a petition to the District Level Committee’ (DLC). Under this Act the
Gram Sabha shall be the authority to initiate the process for determining
the nature and extent of individual or community forest rights or both
that may be given to the forest dwelling Scheduled Tribes and other tra-
ditional forest dwellers within the local limits of its jurisdiction.
Section 6(8) has provided that there shall be at least one woman nomi-
nee out of three nominees of Panchayati Raj institution in the SDLC, the
DLC and the State Level Monitoring Committee. This all proves that the
principle of self-determination and principle of participative democracy
has been applied in provisions of this Act.
The Act has also a provision for taking cognizance of a case by the
court which reads as follows:
1] FOREST AND CONSERVATION LAWS 369

No court shall take cognizance of any offence under Section 7 unless

any forest dwelling Scheduled Tribe in case of a dispute relating to a resolu-
tion of a Gram Sabha or the Gram Sabha through a resolution against any
higher authority gives a notice of not less than sixty days to the State Level
Monitoring Committee and the State Level Monitoring Committee has not
proceeded against such authority.”
The Act has been appreciated as a potential tool 1) to empower and
strengthen the local self governance; 2) to address the livelihood security
of the people; 3) leading to poverty alleviation and pro-poor growth;
4) to address the issues of conservation and management of the natural
resources and conservation governance of India; and 5) to protect the
indigenous knowledge and folk culture. On the other hand, the Act has
been criticised as having failed to distinguish between indigenous/tribal
people and other forest dwellers properly. Further, restriction of four
hectares of land to be occupied by the individual or family is a blow to
their right to land. Such forceful divestment would amount to denial of
their inherent right to own the property and denial of human right to
livelihood. It is to be noted that the Act has also failed to take note of
those tribal people who are on the verge of extinction.
The Supreme Court has also explained the proactive and significant
role of tribal/indigenous people in a recently decided case. The court
observed that “the native and indigenous people are fully aware and they
have the knowledge as to what constitutes conservation of forests and
development...these natives and indigenous people know how to keep
the balance between economic and environment sustainability.”*

2. NATIONAL FOREST POLICY, 1988

The policy of 1988 was a turning point in the management of forests
in India. It was declared by the government that the principle aim of
the policy is to “ensure environmental stability and maintenance of eco-
logical balance including atmospheric equilibrium which are vital for
sustenance of all life forms—human, animal and plant. The derivation
of direct economic benefit must be subordinated to this principal aim”.
Thus conservation of forests is essential as conservation includes preser-
vation, maintenance, sustainable utilisation, restoration, and enhance-
ment of the natural environment. Thus, this policy was passed with
following basic objectives to maintain “environmental stability through
preservation and, where necessary, restoration of the ecological balance
that has been adversely disturbed by serious depletion of the forests of
the country”. These objectives are:

77, Bh
78. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338: AIR 2011 SC
2781.
 ENVIRONMENTAL LAW [CHAP.
379°

Conserving the natural heritage of the country by preserving the

remaining natural forests with the vast variety of flora and fauna,
which represent the remarkable biological diversity and genetic
resources of the country.
Checking soil erosion and denudation in the catchment areas of
rivers, lakes, reservoirs in the “interest of soil and water conserva-
tion, for mitigating floods and droughts and for the retardation of
siltation of reservoirs”.
Checking the extension of sand-dunes in the desert areas of
Rajasthan and along the coastal tracts.
Increasing substantially the forest/tree cover in the country through
massive afforestation and social forestry programmes, especially
on all denuded, degraded and unproductive lands.
Meeting the requirements of fuel-wood, fodder, minor forest pro-
duce and small timber of the rural and tribal populations.
Increasing the productivity of forests to meet essential national
needs.
Encouraging efficient utilisation of forest produce and maximising
substitution of wood.
. Creating a massive people’s movement with the involvement of
women, for achieving these objectives and to minimise pressure on
existing forests.
The policy suggested several strategies. These are:
BL Development of at least one-third area of the country under forest
cover.
2. To encourage afforestation, social forestry and farm forestry.
Qe. Management of forests by the State Governments.
. The rights and concessions, including grazing, should always
remain related to the carrying capacity of forests and should pri-
marily be for the bona fide use of the communities living within
and around forest areas, specially the tribals. Substitute of wood
must be identified and must be used like cement railway sleepers,
cemented wooden panels in the houses, etc.
- Diversion of forest land for any non-forest purpose should be sub-
ject to the most careful examinations by specialists from the stand-
point of social and environmental costs and benefits. Regeneration/
compensatory afforestation is an essential part of such diversion.
Wildlife conservation is the part of this strategy.
To safeguard the customary rights and interests of such people.
~S Damage to forests from encroachments, fires and
grazing must be
stopped.
Special strategy for forest based industries should be deve
loped.
11] FOREST AND CONSERVATION LAWS 371

10. Forest extension, research and forest education are also essential
part of forest policy.
All these programmes will be supported by legal and financial sup-
port from the government. On the basis of this policy, many steps have
been taken by the government as Environment Impact Assessment
Notifications of 1994 and 2006 is the result of such strategy. The courts
have also based their judgments on this policy. It was widely referred
by the Supreme Court in Lafarge Umiam Mining (P) Ltd. v. Union of
India” (Lafarge Umiam Mining).
In Lafarge Umiam Minning*®*, the Supreme Court has directed that
the Central Government and the State Governments should appoint
“Appropriate Authority preferably in the form of Regulator” at the
Centre and the State level to ensure the implementation of the National
Forest Policy, 1988. The National Regulator shall appraise the projects,
enforce environmental conditions for approvals and impose penalties on
polluters. It was further clarified that as per Office Memorandum of the
MoEF, dated 26 April zor1*!, it is essential to seek forest clearance from
the Forest Department before the grant of the environmental clearance.
The court also issued 15 guidelines to be followed in future where the
proposal involves a forest land. It was also emphasised that the National
Forest Policy, 1988, which has laid down “far-reaching principles”, must
govern the grant of permission under Section 2 of the FCA. It was also
declared that the National Forest Policy, 1988 “should be read as a part
of the provisions of the Environment (Protection) Act, 1986 read together
with the Forest (Conservation) Act, 1980”.

79. (2011) 7 SCC 338: AIR 2011 SC 2781.

80. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338: AIR 2011
SC 2781, 2813. Main question involved in this case was regarding the mine
lease— whether a post-facto approval by the Forest Department and MoEF given to
the lessee?
In this case permission and clearance were given in 1997 and 2000, but objection
was made by the Chief Conservator of Forest in 2006.
81. Recently a new communication “Office Memorandum of the MoEF” dt. 9-9-2011,
has highlighted and clarified this point. This memorandum has laid down the pro-
cedure to be followed for consideration of the projects that involve for grant of envi-
ronment clearance.
 CHAPTER 12
Wildlife Protection and the Law

Men too wise to tolerate hasty tinkering with our

political constitution accept without a qualm the most
radical amendment to our biotic constitution.
—Aldo Leopold:

Wildlife is one of our basic and natural resources that satisfies the needs
or wants of civilization. Therefore, this resource must be conserved, pre-
served and protected for the existence of mankind. Wildlife is also an
intricate part of our ecosystem as the green plants (producers) and ani-
mals are members of the trophic level? in which man is at the top. Thus,
conservation of living natural resources— plants, animals and microor-
ganisms and the non-living elements of the environment on which they
depend — is crucial for existence and development of mankind. To save
the number and diversity of species and their ecosystem is an indispen-
sable prerequisite for sustainable development. The World Commission
on Environment and Development, in its report “Our Common Future”
(1987), emphasised the preservation of our biological diversity and
ecosystems.
India is endowed with an immense variety of natural resources in its rich
animal and plant heritage, which sustain millions of its people. While the
maintenance of the country’s basic biological productivity through proper
land and water management is of vital ecological concern, the preservation
of its genetic diversity and conservation of its species and ecosystems for
sustainable utilisation is of crucial importance for the future survival and
development of our people.’

1. Aldo Leopold (1941) quoted in E.P. Odum, Fundamentals of Ecology (W.B. Saunders
& Co. 1971) 409. ; :
2. Trophic level means the level at which energy (food) is transferred from one organism
to another.
3. Planning Commission (6th Five-Year Plan 1980-1985) (1981) 343.

ee
 374. ENVIRONMENTAL LAW [CHA P.

The famous Silent Valley case‘ highlighted the issue of protection and
conservation of our rich and unique heritage of rare and valuable flora
and fauna for the benefit of the nation and posterity, including endan-
gered species like lion-tailed monkey, as they are national assets.
Hundreds of species have become extinct and many others are on the
verge of extinction as they are listed as endangered species. The extinc-
tion of a specie is an irreversible loss of a potential natural resource. It
has rightly been observed that “the preservation of the fauna and flora,
some species of which are getting extinct at an alarming rate, has become
a great and urgent necessity for the survival of humanity and these laws
reflect a last-ditch battle for the restoration... .”°
In the famous case of State of Bihar v. Murad Ali Khan’, the Supreme
Court of India cautioned:
Environmentalists’ conception of the ecological balance in nature is based
on the fundamental concept that nature is ‘a series of complex biotic com-
munities of which man is an interdependent part’ and that it should not be
given to a part to trespass and diminish the whole. The largest single factor
in the depletion of the wealth of animal life in nature has been the ‘civilised
man’ operating directly through excessive commercial hunting or, more dis-
astrously, indirectly through invading or destroying natural habitat.
In Tarun Bharat Sangh v. Union of India’, the Supreme Court empha-
CASE PILOT sising the importance of the environment and wildlife declared that
“this litigation should not be treated as the usual adversarial litigation.
Petitioners are acting in aid of a purpose on natural agenda. Petitioners’
concern for the environment, ecology and wildlife should be shared by
the government”. The petitioners brought this action for the enforce-
ment of certain statutory notifications promulgated under the Wildlife,
Environment Protection and Forest Conservation Laws in an area
declared as a reserve forest in Alwar district (Sariska Tiger Project). The
court ordered for constituting a committee to ensure the enforcement of
the notifications and other statutory measures to prevent the devastation
of the environment and wildlife within the protected area.
The Indian Constitution, under Article 48-A®, has provided that “the
State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country”. It is a directive and
constitutional pointer to the “State”. Further, List III of Schedule VII
provides the following entries under which the Centre and the States
both can make laws:

4. Society for Protection of Silent Valley v. Union of India, OP Nos. 2949

and 2025 of
1979, decided on 2-1-1980 (Ker).
5. Tarun Bharat Sangh v. Union of India, 1992 Supp (2) SCC 448.
6. (1988) 4 SCC 655, 660-61: 1989 SCC (Gri) r2-7:
7. 1992 Supp (2) SCC 448: AIR 1992 SC 514.
8. Incorporated in 1976.
12] WILDLIFE PROTECTION AND THE LAW 375

TABLE 1 Entries in Concurrent List relating to environment

Entry 17
5 empPrevention of cruelty to animals
Be ETHERS ES Se RO ee ete ese AOL GEA 962A SME 90)
ee sare en 1 RP REL BRAN peel oe O029 fed oe aR S95 5

Entry 29 Preventionoftheextension from one State toanother ofinfectious orcontagious disease

of pests affecting men, animals or plants

List II of the Seventh Schedule also empowers the States to make laws
“to preserve, protect and improve the livestock and prevent animal dis-
eases...”” and on “fisheries”!®.
In the exercise of the above powers, Indian Parliament has passed the
following major Acts to protect, preserve and improve wildlife:
1. Wild Life (Protection) Act, 1972
2. Prevention of Cruelty to Animals Act, 1960
3. Biological Diversity Act, 2002
Before the passing of the abovementioned Acts, there were other laws
in existence to protect wildlife. The Penal Code, 1860 (IPC), though
it has no specific provision relating to wildlife, but it defines the term
“animal”!! and declares maiming, killing of animals as an offence and
punishable under various sections.'? The Cattle Trespass Act, 1871 and
the Elephants Preservation Act, 1879 are the earliest laws dealing with
wildlife. The Elephants Preservation Act prohibited killing, injuring or
capturing, or any attempt at the same, unless it is in self-defence, permit-
ted by a licence, or when the elephant is found damaging house or cul-
tivation, or in immediate vicinity of public road, railway or canal. [S. 3]
Penalty for the contravention of this provision has also been provided by
the Act. [S. 7|
The Forest Act, 1927 also included certain provisions for restricting
hunting in reserved and protected forests and other authorised estab-
lishments or sanctuaries. [S. 26(1)(z)(7)] Thus, hunting, shooting, fishing,
poisoning water or setting traps, etc., is an offence under the Act.

1. WILD LIFE (PROTECTION) ACT, 1972

Hon’ble Markandey Katju J, while highlighting the importance of wild-

life, stated:
Preservation of wildlife is important for maintaining the ecological balance
in the environment and sustaining the ecological chain. It must be understood
9, Entry 15.
10. Entry 21.
11. S. 47, “animal” denotes any living creature, other than a human being.
12.S. 428, mischief by killing or maiming animals of value of g10; S. 429, mischief by
killing or maiming cattle, etc. of any value or any animal of the value of 50.
 [CHAP.
376 ENVIRONMENTAL LAW

s eat frogs,
that there is interlinking in nature. To give an example, snake
we kill all
frogs eat insects and insects eat other insects and vegetation. If
this will
the snakes, the result will be that number of frogs will increase and
eaten,
result in the frogs eating more of the insects and when more insects are
er
then the insects which are the prey of other insects will increase in numb
opor-
to a disproportionate extent, or the vegetation will increase to a dispr
tionate extent. This will upset the delicate ecological balance in nature. If
we kill the frogs the insects will increase and this will require more insecti-
cides. Use of much insecticide may create health problems. To give another
example, destruction of dholes (wild dogs) in Bhutan was intended to protect
livestock, but this led to a greater number of wild boar and to resultant crop
devastation causing several cases of abandonment by humans of agricultural
fields. Destruction of carnivorous animals will result in increase of herbiv-
orous animals, and this can result in serious loss of agricultural crops and
other vegetation.’
In 1972, Indian Parliament passed a comprehensive national law —the
Wild Life (Protection) Act, 1972 (WLPA)—with the sole aim of pro-
tecting wildlife, birds and plants and for matters connected thereto or
ancillary or incidental thereto with a view to ensuring the ecological
and environmental security of the country.’ It not only prohibits hunting
but also created protected areas and controls trade in wildlife products.
To achieve these objectives, it has created a separate and independent
authority to protect and improve wildlife. The Act has been accepted and
adopted by all the States except Jammu and Kashmir.'*
It has been made clear by the Supreme Court that Article 21 of the
Constitution protects not only the human rights but casts an obligation
on human beings to protect and preserve a species becoming extinct,
conservation and protection of environment is an inseparable part of
right to life.'* It is the duty of the State to protect wildlife and conserve it.
The WLPA serves the “constitutional purpose” mentioned under
Articles 48-A and Article 51-A(g) as it prohibits hunting of wild animals
except in certain limited circumstances.” The court has declared that the
provision of the Wildlife Act are salutary and are necessary to be imple-
mented to maintain ecological chain and balance.'®
The first and foremost purpose of this Act is to protect the habitats of
wild animals. As a sequel to it, various national parks and game sanc-
tuaries have been established to ensure greater protection to wildlife.
13. Sansar Chand v. State of Rajasthan, (2010) 10 SCC 604: (2011) 1 SCC (Cri) 79.
14. Incorporated by the Amendment Act, 2002.
15. Protection of wild animals and birds falls under Concurrent List—Entry 17-B under
Art. 246 of the Constitution.
16. Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8
SCC 234, 256.
17. Sansar Chand v. State of Rajasthan, (2010) to SCC 604: (2011) 1 SCC (Cri) 79.
18. Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8
SCC 23452)
12] WILDLIFE PROTECTION AND THE LAW 377

We have a network of 99 national parks, 515 wildlife sanctuaries, 43

conservation reserves and four community reserves in different biogeo-
graphic zones. Some special provisions also aim to preserve endangered
species like Project Tiger, Gir Lion Sanctuary, Himalayan Musk Deer
Project, etc.
It has to be noted that “poaching” of wildlife is an organised interna-
tional illegal activity which generates massive amount of money. Moreover,
India is a signatory to both the UN Conventions on International
Trade in Endangered Species (CITES) and the UN Convention Against
Transnational Organised Crime (CTOC). Therefore, Wildlife is under
threat of almost extinction, mainly due to organised poaching, its inter-
national links and due to destruction of habitat. Thus, the Act has been
passed “to ensure the ecological and environmental security of the
country.”!?
Widespread changes have been made by the newly passed Wild
Life (Protection) Amendment Act, 2002 and a new chapter has been
incorporated as Chapter VI-A to deal with the forfeiture of property
derived from illegal hunting and trade. Further, the new Amendment
Act has also introduced the concept of cooperative management through
Conservation Reserve Management Committee and Community Reserve
Committees.
The Act consists of 60 sections and 6 schedules—divided into 8
chapters.
Chapter I has provided certain definitions of the terms used in the Act.
Some of them are as follows:
1. “Wildlife”: According to Section 2(37).— “Wildlife includes any
animals, aquatic or land vegetation which forms part of any habitat.”
This definition is wider in its connotation.
The term “wild animal” has also been defined as any animal found
wild in nature and includes any animal specified in Schedules I, II, III,
IV or V, wherever found. Schedule I includes list of mammals (1-41-
B), amphibians and reptiles (1-17-A), birds (1-18), crustacea and insects.
It has been clarified that “animal” includes amphibians, birds, mam-
mals, reptiles, other chordates and invertebrates, and their young, and
in the case of birds and reptiles, their eggs [S. 2(1)].?° The term “animal”
in Section 2(1) of the Act includes only living organism and not dead
objects. Thus, coral reef fragments being a calcareous substance can-
not be included in the definition of “wildlife” or “wild animal” by any
stretch of interpretation.”

19. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362.

20. Viniyog Parivar Trust v. Union of India, AIR 1998 Bom 71. Also, S. Jagannath v.
Union ofIndia, (1997) 2 SCC 87: AIR 1997 SC 811.
21. See, State of T.N. v. Kaypee Industrial Chemicals (P) Ltd., AIR 2005 Mad 304.
 378 ENVIRONMENTAL LAW [CHAP.

“Directors of Wildlife” in the Union Territories and “Chief Wildlife

Wardens” in the States shall be appointed to exercise the powers pro-
vided under the Act.22 They can also delegate their powers with the pre-
vious approval of the Central Government and the State Governments,
by order in writing, to any subordinate officer.”?
According to the Amendment Act, 2002, the Central Government
shall constitute a “National Board” for wildlife. The Prime Minister
shall be the Chairman of the Board and other 37 persons shall be mem-
bers with him. Similarly, each State shall constitute a “State Board” for
State wildlife. The Chief Minister shall be its Chairman and it will con-
sist of 30 members.
The State Boards have been conferred with a duty to advise the State
Governments in the selection and management of areas to be declared as
protected areas and advise in the formation of policies for the protection
and conservation of the wildlife and specify plans, etc.”4

1.1 Hunting of wild animals

Hunting of wild animals has been prohibited altogether.?> But the Chief
Wildlife Warden (CWW) has been authorised to grant permission to
hunt animals under certain circumstances.” These circumstances are as
follows:
1. Ifthe CWW is satisfied that any wild animal, specified in Schedule I
has become a) dangerous to human life, b) disabled, or c) diseased
beyond recovery; (no wild animal shall be ordered to be killed
unless the CWW is satisfied that such animal cannot be captured,
tranquillised or translocated).?7
2. When the CWW, or the authorised officer, is satisfied that any wild
animal specified in Schedules II, III, or IV has become dangerous
to human life or to property, or is so disabled or diseased so as to
be beyond recovery.
He shall permit any person in writing and stating the reasons to hunt.
The killing in good faith of any wild animal in defence of oneself or of
any other person is not an offence.
ZeeeNS
23.5. 59 has declared every officer or Chairperson as public servant within
the meaning
of S. 21 IPC.
24. See, S. 8.
25.S. 9, (a) “Hunting” includes capturing, killing, poisoning, snarin
g and trapping, or
every attempt to do so, of the wild animals; (b) driving any wild
animal for such
purpose; (c) injuring or destroying or taking any part of any such
animal and in case
of wild birds or reptiles, damaging the eggs or disturbing eggs
or nests of birds and
reptiles [S. 2(16)].
26. SR
27. Added by the Amendment Act, 2002.
 12] WILDLIFE PROTECTION AND THE LAW 379

Any wild animal killed or wounded in defence of any person shall be

government property. -

1.2 Grant of permit to hunt for special purposes

The CWW may also grant permit to hunt to any person, on payment,
subject to conditions as may be specified therein, any wild animal for the
purpose of?8
I. education;
2. scientific research;
3. scientific management [means a) translocation of wild animal to an
alternative suitable habitat, or b) population management of wild-
life without killing, poisoning or destroying them];
4. collection of specimens (for a recognised zoo, or for museum or
similar institutions); and
5. derivation, collection or preparation of snake venom for the manu-
facture of life-saving drugs.
No permit shall be granted except with the permission of the Central
Government for the animals specified in Schedule I, and of the State
Government for the animals specified in Schedules II, III, 1V, V and VI.
Hunting for any other purpose and without permission is liable to be
punished under the Act.

1.3 Protection of specified plants”?

1.3.1 Critically Endangered Species (Ecocentric approach)
During last some years the Supreme Court has pointed out that there is an
urgent necessity to preserve and protect vulnerable/critically endangered
species of flora and fauna. The State Government have been authorised
(under S. 36-A) to declare any area owned by the government outside
the National parks and sanctuaries as conservation reserve for the pro-
tection of landscape, seascapes, flora and fauna, and their habitat. For
the protection of them State Government can also declare community
reserve’, any private land to conserve the wildlife and its habitat. This is
in addition to the “protected area”?! declared by the State Government
to constitute any reserve forest or territorial waters as a sanctuary “if
it considers that such area is of adequate ecological, faunal, floral,

20s Las
29. Incorporated in the year 1981.
30. S$. 36-D; where the community or private individual volunteers their land for the
conservation of wildlife and its habitat.
31. See, S. 18-A.
380 ENVIRONMENTAL LAW [CHAP.
s 2

geomorphological, natural or zoological significance, for the purpose of

protection, propagation or developing wildlife or its environment. The
centrally sponsored Integrated Development of Wildlife Habitat Scheme,
2009 covers all type of protected areas including national parks and wild-
life sanctuaries. The Supreme Court in T.N. Godavarman Thirumulpad
v. Union of India** has now emphasised that increasing human activities
and unprecedented over-exploitation of natural resources has threatened
the rare species of flora and fauna and particularly their habitat. The
court observed:
Man-animal conflict often results not because animals encroach human ter-
ritories but vice versa. Often, man thinks otherwise, because man’s thinking
is rooted in anthropocentrism. Remember, we are talking about the conflict
between man and endangered species, endangered not because of natural
causes alone but because man failed to preserve and protect them, the atti-
tude was destructive, for pleasure and gain. Often, it is said such conflicts is
due to human population growth, land use transformation, species habitat
loss, degradation and fragmentation, increase in eco-tourism, access to nat-
ural reserves, increase in livestock population, etc.
The court also adopted a different approach and deviation from earlier
adopted “anthropocentric” approach to “ecocentric approach” to pre-
serve the critically endangered and vulnerable animals and rare species
of flora and fauna. In this case the petitioners sought the direction of the
Supreme Court to protect and preserve the “Asiatic Wild Buffalo”, an
endangered species and their habitat found in the Eastern and Western
Ghats of the country. While explaining these approaches, the court
observed:
Environmental justice could be achieved only if we drift away from the
principle of anthropocentric to ecocentric. Many of our principles like sus-
tainable development, polluter-pays principle, inter-generational equity
have their roots in anthropocentric principles. Anthropocentrism is always
human interest focused and non-human has only instrumental value to
humans. In other words, humans take precedence and human responsibili-
ties 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.*3
It was further clarified:
ecocentric approach to environment stress the moral imperatives to respec
t
intrinsic value, interdependence and integrity of all forms of life. Ecoce
ntrism
supports the protection of all life forms, not just those which are
of value
32. (2012) 3 SCC 277: AIR 2012 SC 1254.
33. Ibid, 283.
12] WILDLIFE PROTECTION AND THE LAW 381

to humans or their needs and underlines the fact that humans are just one
among the various life forms on earth.*4
Applying ecocentric approach, the court in Centre for Environmental
Law, World Wide Fund-India v. Union of India* used the “species best
interest standards” to safeguard the Asiatic Lion and declared that they
have right to live like human being. The Asiatic Lion has been identified
as endangered species.
It was also declared that “Wild Water Buffalo” has been enlisted
as endangered species by the International Union for Conservation of
Nature (IUCN). Therefore, the court directed the State Governments
to give effect fully to the centrally sponsored Integrated Development
Programme of Wildlife Habitat Scheme, 2009 to save the Asiatic Wild
Buffalo from extinction. Similar approach has been reiterated by the
court in T.N. Godavarman Thirumulpad v. Union ofIndia** and Centre
for Environmental Law, World Wide Fund-India v. Union of India?’.
In these cases, the court applied ecocentric approach and declared that
necessary safeguards must be taken and be provided to the rare species of
flora and fauna. The court while pronouncing judgment referred various
international instruments like the Red List of the International Union
for Conservation of Nature (IUCN); the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES);
the Convention on Biological Diversity, 1992 and Convention on the
Conservation of Migratory Species of Wild Animals, 1979. The court
also pointed out that under Section 8, the State Board for Wildlife has
been conferred with a duty to advise the State Government to select,
manage and preserve the “protected areas” for wildlife.
Chapter III-A of the Act** has specified provisions to protect “speci-
fied plants” of sanctuaries, national parks, forests or areas specified by
notification. In T.N. Godavarman Thirumulpad v. Union of India°’,
the Supreme Court directed the Central Government to include Red
Sandalwood [Santalum album (LINN.)] as a “specified plant” within

34. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362, 374.
35. (2013) 8 SCC 234.
36. (2012) 4 SCC 362; in this case the petition was for the protection and preserva-
tion of Red Sandalwood and Red Sanders found only in South India (State of Tamil
Nadu and Andhra Pradesh) included in the Red List of the International Union
for Conservation of Nature (IUCN) and the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, 1973 (CITES).
37. (2013) 8 SCC 234; in this case the court was requested to protect and preserve the
“Asiatic Lions” (an endangered species) including their translocation and their natu-
ral habitat (besides Gir forest or Kuno Wildlife Sanctuary in Gujarat) as number of
lions are increasing.
38. Incorporated in the year 1981.
39. (2012) 4 SCC 362.
 [CHAP.
>

382 ENVIRONMENTAL LAW

the Wildlife
the meaning of Section 2(27) and under Schedule VI of
ngered
(Protection) Act, 1972. The orders were given because it is an enda
ra
species found only in South India, particularly in the States of Andh
Pradesh and Tamil Nadu. Therefore, the court directed to ban export of
Red Sandalwood and regulate sandalwood industries and factories.
All the specified plants, or part or derivation thereof, have been
declared to be the property of the State Governments, and if they are a
part of a sanctuary or national park, they shall be the property of the
Central Government.*® Therefore, a person must have a licence from the
CWW, or other officer to commence or carry on business or occupation
as a dealer in specified plants.
It also prohibits to 1) wilfully pick, uproot, damage, destroy, acquire
or collect; or 2) possess, sell, offer for sale or transfer by way of gift or
otherwise, or transport any specified plant, whether dead or alive or part
or derivative.*! But this provision is not applicable to the member of a
Scheduled Tribe.
Similarly, cultivation**, dealing* in, or possession** of specified plants
without a licence has also been declared to be a punishable act. Further,
no person shall purchase, receive or acquire any specified plant, or part
or derivative otherwise than from a licensed dealer.

1.4 Conservation and its management

The Amendment Act, 2000 has also introduced a new method of
conservation in cooperation with the local people of the area. As per
Section 36-A*, the State Government may in consultation with the local
community declare any area, particularly areas adjacent to national parks
and sanctuaries and areas which link two protected areas, as conserva-
tion reserve. To manage such area, the State Government shall constitute
a Conservation Reserve Management Committee to advise the CWW to
conserve, manage and maintain the conservation reserve. Such commit-
tee shall consist of 1) a representative of the Forest Wildlife Department
who shall act as Member-Secretary; 2) one representative of each Village
Panchayat in whose jurisdiction the reserve is located; 3) three represent-
atives of non-governmental organisations working in the field of wildlife
conservation; and 4) one representative of each of the Departments of
Agriculture and Animal Husbandry. [S. 36-B]

40.8. «7-H.
41. S. 17-A.
42.8. 17-B.
43.$.17-D.
44.8. 17-F.
45. Incorporated by the Amendment Act, 2002.
12] WILDLIFE PROTECTION AND THE LAW 383

1.5 Community reserve

Where a community or an individual has volunteered to conserve wild-
life and its habitat, the State Government may also declare it as com-
munity for the protection of flora and fauna and traditional or cultural
conservation values and practices.
Further, the State Government shall constitute a Community Reserve
Management Committee to conserve, maintain and manage such com-
munity reserve. This committee shall consists of 1) five representatives
nominated by the village panchayat or in its absence by the members
of Gram Sabha, and 2) one representative of the State Forest or wildlife
department. This committee shall be the competent authority to prepare
and implement the management plan for the Committee Reserve and
to take steps to ensure the protection of wildlife and its habitat in the
reserve. It shall regulate its own procedure. [S. 36-D]

1.6 Authorities under the Act

The Central Government may appoint a Director of Wildlife Preservation
and other officers and employees as may be necessary.** These officers
and employees will assist the Director.
Similarly, the State Government may, for the purpose of this Act,
appoint 1) Chief Wildlife Warden; 2) Wildlife Warden; 3) Honorary
Wildlife Wardens; and 4) other officers and employees as may be
necessary.”
Further, the State Governments and the administrators in Union
Territories shall constitute a Wildlife Advisory Board** consisting of the
following persons:
1. The Minister in charge of forests in State, or Union Territory, if
there is no Minister; the Chief Secretary of the State shall be the
Chairman.
2. Two members of the State Government or, in the case of a Union
Territory having a legislature, two members of the legislature of the
Union Territory, as the case may be.
3. Secretary to the State Legislature or to the government of the Union
Territory in charge of forests.
4. The Forest Officer in charge of the State Forest Department —ex
officio.
5. An officer to be nominated by the Director.
6. Chief Wildlife Warden—ex officio.
7. Officers of the State Forest Department—not exceeding five.
S)
S. 4.as amended by the Amendment Act, 2002.
S»
384. ENVIRONMENTAL LAW |CHAP.

the opinion of
8. Such other persons—not exceeding 1o—who in
of wild-
the State Government are interested in the protection
three.
life —including the representatives of tribals not exceeding
own proce-
Such a Board shall meet twice a year and shall regulate its
the
dure. Any defect in the constitution of the Board shall not invalidate
the
proceedings of the Board. The State Board for Wildlife shall have
following duties to advise the State Government. The State Board shall
advise the Central Government
r. in the selection and management of areas to be declared as pro-
tected areas;*”
2. in formulation of policy for protection and conservation of wildlife
and specified plants;
3. in any matter relating to any schedule;
4. in relation to the measures to be taken for harmonising the needs
of tribals and others dwellers of the forest with the protection and
conservation of wildlife; and
5. in any matter that may be referred to it by the State Government.”°
Hunting has been prohibited of any wild animals,*! unless permitted by
the CWW in writing if the animal becomes dangerous to human life, or
disabled or diseased beyond recovery, or a danger to property.

1.7 Protected area*”

Section 18 provides that the State Government may, by notification,
declare its intention to constitute an area, other than an area comprising
any reserve forest or territorial waters, as a sanctuary if it considers that
such area is of adequate ecological, faunal, floral, geomorphological,
natural or zoological significance, for the purpose of protecting, propa-
gating or developing wildlife or its environment.*? Such declaration aims
at protecting wildlife and forests and such a notification shall specify the
situation and limits of an area by roads, bridges or other well-known
intelligible boundaries.
The Collector of the district shall inquire into, and determine the
existence, nature, and the extent of the rights of any person in or over
the land comprising the limits of the sanctuary.**
49. As amended by the Act of 2002.
50. S. 8; see, T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277, 286:
AIR 2012 SC 1254.
51. In Chief Forest Conservator (Wildlife) v. Nisar Khan, (2003) 4 SCC 595: AIR 2003
SC 1867, the Supreme Court declared that “Hunting” includes trapping which is also
prohibited under S. 9 of the Act if it is without permit/licence.
52. Subs. by the Amendment Act, 2002.
$3. Tarun Bharat Sangh v. Union of India, 1992 Supp (2) SCC 448: AIR 1992 SC 5r4.
54.5. 26-A, the procedure has been provided under Ss. 20-25. }
12] WILDLIFE PROTECTION AND THE LAW 385

After the notification under Section 18 is issued and the period for
claim has elapsed and claims, if any, have been disposed of by the State
Government, the State Government shall issue a notification specifying
the limits of the area and declare such area as a sanctuary from a spec-
ified date. No alteration of the boundaries of a sanctuary shall be made
except on a resolution passed by the State Legislature.
Section 18-A empowers the State Government to declare its intention
to constitute any area other than an area comprised within any reserve
forest or territorial waters as sanctuary if it considers that any reserve is
of adequate ecological, faunal, floral, geomorphological, natural or zoo-
logical significance, for the purpose of protecting, propagating or devel-
oping wildlife or its environment.*
In Consumer Education & Research Society v. Union of India**, the
Supreme Court made it clear that a legislature has also the right to reduce
the area by issuing a notification. Such reduction in area by the legisla-
ture cannot be invalidated even when it is taken in haste and without
considering all the aspects, “unless there is material to show that it will
have irreversible adverse effect on the wildlife and the environment”. In
this case, the Gujarat legislature reduced the area of Narayan Sarovar
Chinkara Sanctuary from 765.79 sq kms to 442.23 sq kms. This notifi-
cation was challenged but the court upheld the reduction notification of
the State Government.
The CWW may, on an application, grant to any person a permit to
enter or reside in a sanctuary for
I. investigation or study of wildlife and any purpose ancillary or inci-
dental thereto;
photography;
scientific research;
tourism; and
we a 6
5. transaction of lawful business with any person in the sanctuary.
Only 1) a public servant on duty, 2) permit-holder, and 3) a person hay-
ing a right over immovable property within the limits of a sanctuary,
person passing through pathway in the sanctuary, and dependants of the
above can enter or reside in the sanctuary. But a person residing in the
sanctuary shall be bound
Ir. to prevent the commission of an offence under the Act in the
sanctuary;
2. to report the death of any wild animal and to safeguard its remains;
and

55. T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277: AIR 2012
Se £254.
56. (2000) 2 SCC 599: AIR 2000 SC 975.
57S) 28.
 386 ENVIRONMENTAL LAW [CHAP.

3. to extinguish fire in such sanctuary and to prevent it from spreading

by any lawful means of which he has knowledge or information.

1.7.1 No right to live in wildlife area without permission/permit

In Maheshkumar Virjibhai Trivedi v. State of Gujarat**, the Gujarat High
Court pointed out that no one has a right to enter/possess a land in a
sanctuary except under a permit granted by the Chief Wildlife Warden
as per the scheme provided under Sections 27 and 28, WLPA. In this
case, the government allotted land in 1978 to the petitioners under a
scheme for rehabilitation of the Pakistani nationals who crossed over
to India in 1971. Later on, a Wild Ass Sanctuary was declared in 2001
under the WLPA covering the land area allotted to the petitioners. They
challenged this declaration and demanded that they may be permitted to
live at the allotted land even if it may be inside the sanctuary. The court
declared that the petitioners cannot claim any right to live there and
continue to have the possession of the land as the land was within the
game sanctuary.
Further, all the persons are bound not to tease or molest any wild
animal or litter the grounds of a sanctuary. Unless a permit is issued by
the CWW, no person shall destroy, exploit or remove wildlife including
forest produce from a sanctuary or destroy, damage, or divert the habitat
of any wild animal, or divert, stop or enhance the flow of water into or
outside the sanctuary, unless the State Government is satisfied in con-
sultation with the Board that such removal of wildlife or the change of
flow of water is necessary for the improvement and better management
of wildlife.°?
In Kamla Kant Pandey v. Prabhagiya Van Adhikari Obra®, it was
made clear by the court that under Section 29 the State is empowered
to curtail mining operations in protected area and can terminate lease
prematurely. Such power to cancel the lease is quasi-judicial in nature
and not merely an administrative power. In case a mining lease is granted
under the Mines and Minerals (Regulation and Development) Act, 1957,
the permission of wildlife authorities is a must.
In Kamla Kant Pandey v. State of U.P.*', the court observed that if a
lease has been granted in wildlife sanctuary area, it shall be cancelled.
Any money deposited as lease money, stamp duty shall be refunded to
the lessee.
A permit-holder has been prohibited from setting fire to a sanctuary,
entering with a weapon—except with the prior permission of the CWW
,
58. AIR 2006 Guj 35.
59. S. 29 as amended by the Amendment Act, 2002.
60. AIR 2005 All 136.
61. AIR 2006 All 92.
12] WILDLIFE PROTECTION AND THE LAW 387

and using chemical explosives or any substance which may cause injury
to or endanger any wildlife.°
In Gujarat Navodaya Mandal vy. State of Gujarat®, the Gujarat High
Court observed that if the Central Government and the State Government
have issued permit to lay down a pipeline in the Marine National Park/
Sanctuary, Jamnagar taking into account the necessary precautions that
neither the ecology nor the environment would be damaged in the pro-
cess, there was nothing illegal in the granting of such permission. The
State Government, the Central Government and the Gujarat Pollution
Control Board (GPCB) issued NOC for setting up the project with cer-
tain conditions regarding the proper management as well as for the
improvement of wildlife. On examining the conditions and the NOC
issued by the State and Central Governments, it was observed that grant
of permission was not illegal under Section 29, WLPA.
But no person can destroy, exploit or remove any wildlife from a sanc-
tuary or damage, deprive or destroy the habitat of any wild animal except
in accordance with the permit granted by the CWW. Such destruction,
exploitation or removal must be necessary for the improvement and bet-
ter management of wildlife.** Similarly, no person can 1) set fire, or kindle
fire, leave fire in the sanctuary; and 2) use chemical, explosive or any
other injurious substance which may cause injury to, or endanger any
wildlife. Further, 3) no person shall enter the sanctuary with any weapon
without prior permission of the CWW.
The Supreme Court in Essar Oil Ltd. v. Halar Utkarsh Samiti® exam-
ined the applicability and scope of Section 29 and declared that this
section “bars anyone from completely, irreparably and irreversibly put-
ting an end to wildlife or to the habitat in a sanctuary”. Before granting
licence, the State Government must ask for and obtain an environmental
impact assessment (EIA) from expert bodies and further the application
must be accompanied with a environmental management plan which
must be cleared by the experts to prevent possible future damage. In this
case the State permitted the laying of oil pipelines inside the Jamnagar
National Park and Sanctuary to the Essar Oil Ltd. Permission to Essar
Oil Ltd. by the government and to others by the Gujarat High Court
were challenged, as they could destroy the natural habitat and ecology
of the area. The court approved the permission granted with certain
conditions.
The Act has declared the CWW as an authority to control, man-
age and maintain the sanctuary and to take necessary action for the

62.5. 32.
63. AIR 1998 Guj 141; Ref. Pradeep Krishen v. Union ofIndia, (1996) 8 SCC 599: AIR
1996 SC 2040.
64.5S. 29.
65. (2004) 2 SCC 392: AIR 2004 SC 1834.
 ENVIRONMENTAL LAW |CHAP.
388

can also
security of the wildlife and improve their habitat [S. 33]. He
communicable
take necessary steps for immunisation measures against
diseases.
State
Sanctuaries and national parks®’ are constituted by the
or ter-
Governments by issuing a notification, along with reserve forests
ritorial water as sanctuary and national park, if it considers that such
area is of adequate ecological, faunal, floral, geomorphological, natural
or zoological significance, for the purpose of protecting, propagating or
developing wildlife or its environment. Such notification shall specify the
situation and limits of such area. Sanctuaries and national parks also
include territorial waters.
The State Government is authorised to, under Section 35(1) and (4),
declare an area as an ecologically sensitive area and further Central
Government may in the exercise of its powers under clause (v) of sub-
rule (r) of the Rule 5 of the Environment (Protection) Rules, 1986 pro-
hibit or restrict the location of industry and carrying on a processes and
operations to preserve the biological diversity of the area.®*
Boundaries so notified shall not be altered except on a recommenda-
tion of the National Board.
The recently passed Wild Life (Protection) Amendment Act, 2002
(WLPA) has provided under Section 18-B that the State Governments
shall appoint an officer to act as Collector within 90 days of coming into
effect of the Amendment Act, 2002,...to inquire into and determine the
existence, nature and extent of rights of any person in or over the land
comprised within the limits of a sanctuary notified under Section 18(r).
Further, as per Section 25-A, the Collector shall, as far as possible,
complete the proceedings regarding the determination of rights of person
in the sanctuary within a period of two years from the date of notifica-
tion of declaration of the sanctuary under Section 18. If the proceedings
are not completed within a period of two years, the said notification shall
lapse.
The boundaries shall only be changed by the State Government or on
the recommendation of the National Board.
Procedure for denotification of the sanctuary was discussed in detail by
the Supreme Court in Consumer Education & Research Society v. Union
of India®’, decided recently. In this case, the State of Gujarat declared an
area of 765.79 sq miles as “Narayan Sarovar Chinkara Sanctuary” under

66. Ss. 18-34.

67. S. 35. See, Tarun Bharat Sangh v. Union of India, 1992 Supp (2) SCC 448.
68. See, Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575. In this case
Gulf of Mannar consisting of 21 islands was notified as a marine national park under
S. 35(1), Wild Life (Protection) Act, 1972.
69. (2000) 2 SCC 599: AIR 2000 SC 975.
12] WILDLIFE PROTECTION AND THE LAW 389

Section 18(1) WLPA on 14 April 1981. Later on, the State Legislature
by passing a resolution on 27 July 1995 reduced the sanctuary limit to
444.32 sq km and designated an area of 321.56 sq km which was rich in
limestone, lignite, bauxite and bentonite for development purposes. This
was done as provided by Section 26-A(3) of the Act. This resolution came
into effect on 9 August 1995 by issuing a notification.
The petitioners filed a writ petition challenging the notification dated
9 August 1995 as the reduced area was not sufficient for the protec-
tion of wildlife of the area. The High Court dismissed the writ petition
stating that 444.23 sq km would be sufficient for the protection of the
Chinkaras of the area and help in protecting wildlife and vegetation of
the area. Mining would benefit the people of Kutch. The proper condi-
tions imposed by the State on mines and cement plant were adequate to
prevent the pollution likely to arise in the area.
The petitioners went in appeal to the Supreme Court against the above
order of the High Court and pleaded that 1) the State Government had
acted on the incorrect belief that the sole aim of the notification dated
14 April 1981 was to protect Chinkaras; 2) State Legislature had not
considered all aspects of the denotifications; and 3) a lot of information
was not brought to the notice of the legislature. During the pendency of
the petition, the Supreme Court directed the Union of India to constitute
an Expert Committee to consider the significance of the denotified area
in terms of flora and fauna and geomorphology.
After considering the report of the Expert Committee and other
aspects of denotification, the court, instead of quashing the notification
dated 9 August 1995, adopted a precautionary approach. It declared
that the proper course, under the circumstances, would be to permit
restricted and controlled exploitation of mineral wealth of that area,
watch its effects for a period of about five years and to make a compre-
hensive study of the whole area from the environmental point of view.
The court did not think it proper to quash the denotification order
dated 9 August 1995. It observed:
Some aspects deserved better consideration and some other relevant aspects
should also have been taken into account by the State Legislature. But it will
not be proper to invalidate the resolution of the State Legislature on such a
ground when it took the decision after duly deliberating upon the material
which was available with it and did not think it necessary to call for further
information. The power to take a decision for reduction of the notified area
is not given to the State Government but to the State Legislature. The State
Legislature consists of representatives of the people and it can be presumed
that those representatives know the local areas well and are also well aware
of the requirements of that area. It will not be proper to question the decision
of the State Legislature in a matter of this type unless there are substantial
and compelling reasons to do so. Even when it is found by the Court that the
390 ENVIRONMENTAL LAW [CHAP. ,]

decision was taken by the State Legislature hastily and without considering
all the relevant aspects it will not be prudent to invalidate its decision unless
there is material to show that it will have irreversible adverse effect on the
wildlife and the environment.

It also emphasised to balance the need for the protection of the environ-
ment including wildlife and the need for economic development of an
impoverished, backward area. It observed:
The forest in the notified and denotified areas is an edaphic thorn forest. It
is a desert forest but with a large number of trees. It has been identified as a
potential site for designation as a biosphere reserve by an Expert Committee
constituted by the Ministry of Environment and Forests. It has been put in
a ‘rich area category’, from the biodiversity point of view, by the Gujarat
Ecology Commission. Even the Union of India in its affidavit has stated that
the denotified area of the sanctuary includes many areas of high and very high
floral and faunal value and these areas form an integral part of the Narayan
Sarovar Sanctuary. The Rapid Impact Assessment Report by the Wildlife
Institute of India has also pointed out that any reduction in the area of that
sanctuary will reduce the number of species of trees. It is also at the same
time true, as pointed out by the Government, that this part of Kutch District
is a backward area. There is no other possibility of industrial development in
that area, though it contains rich mineral deposits. Therefore, if an attempt is
made by the State Legislature and the State Government to balance the need
of the environment and the need of economic development it would not be
proper to apply the principle of prohibition in such a case. The reports of the
three Committees only point out the ecological importance of the area and
express an apprehension that any major mining operation within the notified
area and large-scale industrialisation near about the sanctuary as originally
notified, may adversely affect the ecological balance and biodiversity of that
area. It would, therefore, be proper and safer to apply the ‘principle of pro-
tection’, and the ‘principle of polluter pays’ keeping in mind the ‘principle of
sustainable development’ and the ‘principle of intergeneration equity’.
After notification of the intention to constitute any area as a sanctuary
or national park, the claims of the persons concerned are received, heard
and finalised by the Collector of the district concerned who can also
award compensation for the acquisition of the area.”? Such acquisition
shall be deemed to be acquisition for a public purpose.
It has, also been made clear in Consumer Education and Research
Society v. Union of India’', that while notifying the boundaries of wild-
life sanctuary, the State Government must give due weight to the report
of Expert Committee which suggested that no new mining lease should
be granted within 2.5 km of the sanctuary. If a lease has been granted in
this area, it is liable to be rejected/cancelled.

70. Procedure provided for from Ss. 19-26 under the Act.
71. (2005) to SCC 185.
12| WILDLIFE PROTECTION AND THE LAW 391

The Madras High Court” clarified that once a particular area is

declared as a wildlife sanctuary, any private rights in that territory shall
be subject to the conditions of the permit granted by the CWW. Such
conditions are imposed for preservation of sanctuary and protection of
wildlife and their habitat in the sanctuary. In this case, the territory was
declared as wildlife sanctuary and the petitioner’s estate was also situ-
ated in that territory. It was declared that under such circumstances the
authority can impose restrictions on the movements of vehicles and their
time duration from 6 a.m. to 6 p.m. The restriction was declared valid.
If the State Government leases or otherwise transfers any area, not
an area within a sanctuary, to the Central Government, the Central
Government may also declare such an area as a sanctuary or national
park. In such a case all the provisions which apply to a State sanctuary
or national park shall apply to it.”
The Supreme Court in Animal and Environment Legal Defence Fund
v. Union of India” declared that the State Government must always con-
sider the right of tribals before an action is taken to acquire an area
and declare it as a National Park Area. In this case, some tribals were
living in an area which was declared as Pench National Park Area (MP).
They were resettled in another area but were given fishing permits in
the above area. These tribal villagers did not initially make any claim
pursuant to proclamation issued under Sections 19 and 21. Later on,
they claimed that fishing was their only source of livelihood and a tra-
ditional right. The court held that issuance of such permits did not fall
under Section 33 of the Act as they were issued before the final noti-
fication under Section 35(4) for notifying the area as national park.
Therefore, the State Government was directed to issue the final notifica-
tion under Section 35(4) with a sense of urgency in the matter enjoined by
Article 48-A of the Constitution, keeping in mind the duty enshrined in
Article 51-A(g). The court also directed that urgent steps must be taken
to prevent any destruction or damage to the environment, the flora and
fauna and wildlife in the notified area.
The Allahabad High Court in Nagar Palika Parishad, Mussoorie v.
State of U.P.” clarified that the claim of the petitioner, being the owner
of the property, is not a claim which is permissible unless it is excluded
under Section 24(2)(b). It is for the Collector to decide either to exclude
the property or to acquire the property. The Collector has the sole
authority to admit or reject the claim in whole or part after conducting

72. Bombay Burmah Trading Corpn. v. Field Director, Project Tiger & Conservator of
Forests, AIR 2000 Mad 163.
73.58. 38.
74. (1997) 3 SCC 549: AIR 1997 SC 1071; also, Chandmari Tea Co. v. State of Assam,
AIR 2000 Gau 13.
75. AIR 1998 All 232.
 [CHAP.
392 ENVIRONMENTAL LAW

after making
an enquiry under Sections 19 and 22. Once the Collector,
acquires the
an enquiry under Section 22, with the aid of Section 23,
left to
property following the procedure of Section 25, the only remedy
the petitioner is to seek compensation.
on in
The sanctuary does not envisage lodging of any objection by any pers
the
the declaration of sanctuary. There is no scope for the Court to go into
justification of any declaration of any area to be included in the sanctuary
provided it satisfies the test of Section 18(1) of the Act. Section 18 empowers
the State Government to declare any area to be a sanctuary if it is considered
that such area is of adequate, ecological, faunal, floral, geomorphological,
natural or zoological significance for the purpose of protecting, propagating
or developing wildlife or its environment.
It was declared that once the abovementioned test is satisfied, the griev-
ance of a person having a right over any such property included in a
sanctuary is limited to the determination of his right as envisaged in
Section 19 read with Section 21(b) followed by Sections 24 and 25 of
the said Act. The claim of the petitioner is confined to 1) specify the
nature and extent of the right; and 2) the amount and particulars of
compensation.
In Pradeep Krishen v. Union of India’*, the Supreme Court declared
that the State and the citizens, under Articles 48-A and 51-A(g) respec-
tively, are obliged to protect and improve the natural environment and to
safeguard the forests and wildlife of the country. Therefore, for acquir-
ing land for national parks, sanctuaries, the State has to follow the pro-
cedure as provided in the WLPA under Sections 26-A and 35(1) before a
final notification is issued with regard to acquisition of land. But as the
instant final notification was not issued, the State was directed to 1) issue
the final notification before barring the entry of villagers in the national
park; and 2) institute an enquiry for those who claim a right in or over
any land proposed to be included in the sanctuary/national park. Till
such procedure is complete, the State Government cannot bar the entry
of villagers/tribals into the proposed area, unless such entry is likely to
result in destruction or damage to the environment, flora and fauna and
the wildlife of the area.
The alteration of the boundaries of a national park by the State shall
not be made except on the recommendation of the National Board.””
The Supreme Court in Centre for Environmental Law, WWE-I v.
Union ofIndia’* directed the States and Union Territories to strictly com-
ply to the provisions of the Act particularly Sections 33-A, 34 and 24 of
the Act. The court directed to take concrete steps to establish veterinary
centres of animal husbandry inside the national parks/sanctuaries or in
76. (1996) 8 SCC 599: AIR 1996 SC 2040.
77. As provided by the Amendment Act, 2002.
78. (1999) 1 SCC 263.
12] WILDLIFE PROTECTION AND THE LAW 393

immediate vicinity of them and for the implementation of immunisation

programme of livestock. ;

1.8 Conservation reserve”

According to Section 36-A, the State Government may, after consultation
with the local community/ies, declare any area owned by the govern-
ment, particularly the areas adjacent to national parks and sanctuaries
and those areas which link one protected area with another, as a “con-
servation reserve” for protecting landscape, seascapes, flora and fauna
and their habitat.

1.9 Community reserve*?

The State Government is further empowered to declare an area as “com-
munity area” where the community or an individual has volunteered a
land to conserve wildlife and its habitat and such private or community
land is not comprised within a national park, sanctuary or a conserva-
tion reserve. Such declaration would be for protecting fauna, flora and
traditional or cultural conservation values and practices.
The centrally sponsored Integrated Development of Wildlife Habitat
Scheme, 2009 is intended to bring above two categories of reserves also
under the ambit of the scheme along with existing national parks and
wildlife sanctuaries.

1.10 Central Zoo Authority and recognition of zoos

Chapter IV-A [Ss. 38-A to 38-5] deals with the constitution of a Central
Zoo Authority (CZA), its term of office, conditions of service, procedure
and functions.
The Central Government shall constitute the CZA, consisting of a
Chairperson, 1o members and a Member-Secretary.*! They shall hold
office for a period of three years. Such an authority shall perform the
following functions. It will
1. specify the minimum standards for housing, upkeep and veterinary
care of the animals kept in a zoo;
2. evaluate and assess the functioning of zoos with regard to such
standards;
3. recognise or derecognise zoos;
4. identify endangered species of animals;
79. See, Ss. 36-A to 36-B which were incorporated in the Act by an amendment made
In 2003. . |
80. See, Ss. 36-C to 36-D. Also see, T.N. Godavarman Thirumulpad v. Union of India,
(2012) 3 SCC 277: AIR 2012 SC 1254, 280.
81. S. 38-A.
 [CHAP.
394. ENVIRONMENTAL LAW

g of animals for
5. coordinate the acquisition, exchange and loanin
breeding purposes;
ies of wild
6. ensure maintenance of stud-banks of endangered spec
animals bred in captivity;
ive ani-
7. identify priorities and themes with regard to display of capt
mals in zoos;
8. coordinate training of zoo personnel in India and outside India;
9. coordinate research in captive breeding and educational pro-
grammes, for Z0os;
ro. provide technical and other assistance to zoos for their proper
management and development on scientific lines; and
11. perform such functions as may be necessary to carry out the pur-
poses of this Act as regards zoos.”
No zoo can operate in India without the prior permission of the above
authority. The authority may also suspend or cancel any recognition
granted to a zoo under the Act.*? After the commencement of the Wild
Life (Protection) Amendment Act, 2002, a zoo shall not be established
without “prior approval” of the authority.
No zoo shall acquire, sell or transfer any wild animal or captive ani-
mal specified in Schedules I and II except with the previous permission
of the authority. [New S. 38-I]
Further, the Act provides that “no person shall tease, molest, injure
any animal or cause disturbance to the animals by noise or otherwise, or
litter the ground in a zoo”.**

2. NATIONAL TIGER CONSERVATION AUTHORITY

A new chapter has been incorporated in the Act as Chapter IV-B by an
amendment in the year 2006, which has made a National Authority
and “Tiger Conservation Foundation” for the protection, preservation
and enhancing the population of tigers in India. The Union Minister of
Environment and Forest will be the Chairperson of the National Tiger
Conservation Authority.°° The term of each member shall be for three
years. One can be removed from the membership if one is found insol-
vent, convicted of the offence involving moral turpitude, of unsound
mind, incapable of acting, absents himself from three consecutive meet-
ing or abusing his position to render his continuation in office detrimen-
tal to the public interest.*”

82.8. 38-C.
83. S. 38-H.
84.S. 38-J.
85. From Ss. 38-K to 38-Y.
86. Besides the Chairperson, there shall be 14 other members.
87. S. 38-M.
12] WILDLIFE PROTECTION AND THE LAW 395

The National Tiger Conservation Authority (NTCA) has been con-

ferred various powers and functions.*’ These power and functions
include approval of tiger conservation plans, evaluate aspects of sustain-
able ecology and disallow ecologically unsustainable land use as mining,
industry, etc., lay down guidelines for tourism activities and tiger con-
servation, future conservation plans, approve, coordinate, research and
monitoring on tiger, co-predators, habitat, etc.
The State Governments shall, on the recommendation of the NTCA,
notify an area as “tiger reserve” and plans for “tiger conservation” will
be prepared by the State Governments.*? Such creation of tiger reserve
shall not affect the rights of the Scheduled Tribes and other forest dwell-
ers of the area. The Tiger Conservation Plan shall ensure the agricul-
tural, livelihood, developmental and other interests of people living in
tiger bearing forests or tiger reserve. Such tiger reserve shall include “core
or critical tiger habitat of national parks and sanctuaries are required
to be kept as inviolate for the purposes of tiger conservation” and also
“buffer or peripheral area consisting of the area peripheral to critical
tiger habitat or core area”. Such notification is compulsory on the part of
the States. Such notified area will not be used for tourism. In case they do
not issue notification for the same, State Government will be held liable
for failing in their duty provided under Section 38-V.”°
Similarly the State Governments shall also establish “Tiger
Conservation Foundation” (TCF) in order to facilitate and support the
management of tiger reserves for conservation of tigers and biodiversi-
ty.°! The TCF shall facilitate ecological, economical, social and cultural
development in tiger reserve, promote eco-tourism, solicit technical,
financial, social, legal and other support required for the activities of the
foundation and support research, environmental education and training
in above fields.

3. TIGER AND OTHER ENDANGERED

SPECIES CRIME CONTROL BUREAU
The Central Government has also been authorised to constitute a “Tiger
and other Endangered Species Crime Control Bureau”.”* This bureau
shall have powers to collect and collate intelligence relating to organised
88. See, S. 38-O.
89. S. 38-V.
90. Ajay Dubey v. National Tiger Conservation Authority, (2012) 13 SCC 782. In this
case the Supreme Court ordered the State who did not give affidavit that they have
issued notification for the creation of “core and buffer zones” as required by S. 38-V,
to pay 10,000 as cost and in case they do not comply with the orders of the Court
the cost will increase to 50,000 to be imposed on defaulting States by way of exem-
plary cost.
91. S. 38-X.
92. Chapter IV-C (From Ss. 38-Y to 38-Z). It was incorporated in 2006.
396 ENVIRONMENTAL LAW [CHAP.

wildlife crimes and to apprehend the criminals. It will also help in imple-
menting the various international conventions and protocols ratified or to
be ratified by India and will also advice the Government of India on issues
relating to wildlife crimes having national and international ramifica-
tions and suggests changes in Indian policy and laws relating to wildlife.

3.1 Trade or commerce in wild animals, animal articles and

trophies prohibited
The Act has declared that every 1) wild animal, other than vermin,
which is hunted with the permission of the wildlife warden or kept or
bred in captivity, or hunted in contravention of this Act or rules, etc.,
made thereunder or found dead, or killed by mistake; 2) animal article,
trophy or uncured trophy or meat derived from any wild animal; 3) ivory
imported in India and an article made from such ivory; and 4) vehicle,
vessel, weapon, trap or tool used for committing an offence under the
provisions of the Act shall be the property of the State Government or
the Central Government, if the place of hunting falls in their respective
areas.”* If a person obtains possession of an animal or article mentioned
above by any means, he must inform the nearest Police Station within
a period of 48 hours of obtaining such possession. Further, no person
who gets the abovementioned things shall 1) acquire or keep them in his
possession, custody or control; or 2) transfer them by way of gift, sale
or otherwise, or destroy or damage them without the permission of the
CWW. [S. 39(3)] Therefore, whoever possesses them must make a dec-
laration to the CWW, who shall issue a certificate of ownership for the
same. A person who has a certificate of ownership shall not transfer any
captive animal, animal article, trophy or uncured trophy by way of sale
or by any other mode of consideration of commercial nature. If he trans-
fers them from the State he resides into another State, he shall, within
30 days of transfer or transport, report to the CWW or the authorised
officer within whose jurisdiction the transfer or transport is effected.”
But this provision is not applicable to the tail feathers of peacocks and
articles made thereunder, and any transaction entered into by a recog-
nised zoo and a public museum.
Coral is either 1) a marine living organism, or 2) secretions or dead
outer skeleton of the said living organism. Since, secretions or dead outer
skeleton of coral is not an animal or wildlife within the meaning of
Section 2(r)(2)(36) of the Act, therefore, Section 39 has no application
and any restriction/prohibition on the exlocation/purchase/sale of the
PIS 39. See, Indian Handicrafts Emporium v. Union of India,
(2003) 7 SCC 589: AIR
2003 SC 3240; All India Mobile Zoo Owners & Animal Welfa
re Assn. v. Union of
India, AIR 2000 Del 449.
94.S. 43 as amended by Amendment Act, 2002.
12] WILDLIFE PROTECTION AND THE LAW 397

articles of such non-living organism is not violative of any provision of

the Act.” :
The Act provides that a person can
1. neither commence nor carry on the business as a manufacturer of
or dealer in any animal; or as a taxidermist; or dealer in trophies or
uncured trophies; or dealer in captive animals; or dealer in meat;
2. nor cook nor serve meat in any eating-house without a licence
granted by the designated authority’® in accordance with the
procedure provided in the Act. The licence issued under the Act
shall be valid for a year from the date of its grant and would be
non-transferable. It can be renewed after the lapse of one year. The
dealer is also required to maintain a record of the same which may
be inspected by an authorised officer.
The purchase, sale, capture of any wild animal, animal article, trophy or
meat, etc., without a valid licence from the designated authority, has also
been banned by the Act.”’
“Transportation” of any wild animal, trophy, animal article, etc.,
(other than vermin) without a valid licence is also prohibited under
Section 48-A of the Act.
Similarly, “purchase” from an unlicensed dealer of an animal, animal
article, trophy, etc. is also not permitted under the Act.”®
Chapter V-A [Ss. 49-A to 49-C], incorporated in 1991, prohibited the
trade or commerce in captive animals, trophies, animal articles, etc.;
meat derived from any scheduled animal; import of ivory in India or an
article made from such ivory; and cooking or serving meat derived from
scheduled animals.
In Rajendra Kumar v. Union of India”’, the petitioner challenged the
provisions of the above chapter which imposed a complete ban on import
of ivory and articles made from it. It affected his livelihood and freedom
of trade and business provided under Article 19(1). Moreover, he con-
tended that ivory derived from a mammoth was not ivory derived from a
scheduled animal and, therefore, any article made out of such fossil ivory
could not be brought within the purview of the Act.
J.C. VermaJ observed that the newly incorporated Chapter V-A has
been incorporated keeping in view the international convention, 2.e.
“Convention on International Trade in Endangered Species of Wild
Fauna and Flora” (CITES). The objects and reasons of the Amendment
Act, 1991 make it amply clear that trade in African ivory is proposed

95. State of T.N. v. Kaypee Industrial Chemicals (P) Ltd., AIR 2005 Mad 304.
96.S. 44.
97. S. 48.
98.58. 49.
99. AIR 1998 Raj 165.
 398 ENVIRONMENTAL LAW [CHAP.

dispose of the
to be banned after giving due opportunity to traders to
(1)(a) has
existing stocks. Therefore, the legislature under Section 49-B
can ivory or
totally banned ivory imported into India and not only Afri
any other specified ivory. The imposition of ban on trade in imported
ivory was the main purpose of the Amendment Act and no fault could be
found in the action of the State.’
Chapter V-A? [Ss. 49-A to 49-C] was introduced by an Amendment
Act, 1991 to prohibit the dealing in trophies, animal articles, etc., derived
from scheduled animals. One who deals or wants to deal or manufacture
trophies or animal articles, etc., will have to declare them to the CWW
and he will issue a certificate of ownership to the applicant, with regard
to all or any of these articles, provided that no such item shall be kept
on any commercial premises. Only certificate of ownership holders can
transfer or transport such articles.°
Recently, the Supreme Court in ]
CASE PILOT ia* has declared that trading in ivory has totally been pro-
hibited under Chapter I-A and any person who has obtained a certifi-
cate from the CWW under Section 49-C(3) may keep possession of such
property. It was also made clear that imported ivory also falls under
this category. In this case, the appellant imported ivory from an African
country and manufactured certain articles. It was held that the amended
WLPA bans the keeping of such articles which the trader was supposed
to declare first and must have procured a certificate from the authori-
ties. They cannot be kept for display in any commercial premises. Such
prohibition is a reasonable restriction within Article 19(6) of the Indian
Constitution.
In Balram Kumawat v. Union of India’, the Supreme Court has
declared that the object of Parliament was not only to ban trade in
imported elephant “ivory but ivory of every description so that poaching
of elephants can be effectively restricted”. The Act has put a complete
prohibition on trade in ivory by amending the Act. It was also made clear
that a complete prohibition is a reasonable restriction within the mean-
ing of clause (6) of Article 19 of the Indian Constitution.

3.2 Prevention and detection of offences®

Notwithstanding any other law in force, the 1) Director, or 2) any officer
authorised by the CWW, or 3) any forest officer, or 4) any police officer
1. The court quoted with approval the Delhi High Court’s decision in Ivory Traders ©
Manufacturers Assn. v. Union of India, AIR 1997 Del 267.
. Incorporated in the year 1991.
. S. 49-C.
. (2003) 7 SCC 589: AIR 2003 SC 3240.
. (2003) 7 SCC 628: AIR 2003 SC 3268.
WH
WwW
db
Nn . Chapter VI from Ss. 50 to 58 deals with prevention and detection of offences.
12| WILDLIFE PROTECTION AND THE LAW 399

below the rank of sub-inspector, if he has reasonable grounds for believ-

ing that any person has commiitted an offence under the Act’, shall
(a) require any such person to produce for inspection any captive animal,
wild animal, animal article, meat, trophy, uncured trophy, specified
plant or part or derivative thereof in his control, custody or posses-
sion or any licence, permit or any other document granted to him or
required to be kept by him under the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct search or inquiry or
enter upon and search any premises, land, vehicle or vessel in the
occupation of such person, and open and search any baggage or other
things in his possession;
(c) seize any captive animal, wild animal, animal article, meat, trophy
or uncured trophy or any specified plant or part or derivative thereof,
in respect of which an offence under this Act appears to have been
committed, in the possession of any person together with any trap,
tool, vehicle, vessel or weapon used for committing any such offence
and, unless he is satisfied that such person will appear and answer
any charge which may be preferred against him, arrest him without
warrant and detain him:
Provided that where a fisherman, residing within ten kilometres of a sanc-
tuary or National Park, inadvertently enters on a boat, not used for commer-
cial fishing, in the territorial waters in that sanctuary or National Park, a
fishing tackle or net on such boat shall not be seized.
For the above purposes, the officer can stop and detain any person whom
he sees doing any act for which a licence or permit is required, to show
the licence and if he fails to produce the licence or permit, he may be
arrested without warrant, unless he furnishes his name, address and oth-
erwise satisfies the officer arresting him that he will duly answer any
summons or other proceedings which may be taken against him.
The Assistant Director of Wildlife Preservation or Assistant
Conservator of Forests may give the same for custody on the execution
of a bond for the production of an animal, as and when required, before
the Magistrate, of the seized animal.
Such detained person or thing seized shall be taken to the Magistrate
to be dealt with according to law under intimation to the CWW or officer
so authorised in this regard.
But where the meat or uncured trophy, specified plant or part or
derivative thereof is seized under the provision of this Act, the Assistant
Director of Wildlife Preservation, or a Gazetted Officer so authorised
may arrange for its sale. If the seized articles are not government prop-
erty, the proceeds of the sale shall be returned to the owner."

745090.
8. As amended by the Wild Life (Protection) Amendment Act, 2002.
400 ENVIRONMENTAL LAW |CHAP.

3.3. Wider powers for investigation

below the rank of Assistant Director of Wildlife
Any officer, not
t Conservator
Preservation or an officer not below the rank of Assistan
following
of Forests authorised by the State Government, shall have the
powers for the purpose of making investigations:
t. To issue a search-warrant
2. To enforce the attendance of a witness
3. To compel the production of documents and material objects
4. To receive and record evidence
Any evidence recorded, as mentioned above, shall be admissible in any
subsequent trial before a Magistrate, provided it has been recorded in the
presence of the accused.’

3.4 Penalties!”
A cursory study of the penalties provided under the Act reveals that
“no-fault liability” has been introduced and “mens rea” is not required
to be proved to punish a person. Further, for some offences minimum
punishment has also been provided. Section 51 provides:
(r) Any person who contravenes any provision of this Act except
Chapter V-A and Section 38-J or any rule or order made thereunder
or who commits a breach of any of the conditions of any licence or
permit granted under this Act, shall be guilty of an offence under this
Act, and shall, on conviction, be punishable with imprisonment for a
term which may extend to three years or with fine which may extend
to twenty-five thousand rupees, or with both:
Provided that where the offence was committed in relation to any animal
specified in Schedule I or Part II of Schedule II, or meat of any such animal,
animal article, trophy or uncured trophy derived from such animal or where
offence related to hunting or altering the boundaries of a sanctuary or a
National Park, such offence shall be punishable with imprisonment for a
term which shall not be less than three years but may extend to seven years
and also with fine which shall not be less than ten thousand rupees:
Provided, further, that in case of a second or subsequent offence of the
nature mentioned in this sub-section, the term of imprisonment shall not be
less than three years but may extend to seven years and also with fine which
shall not be less than twenty-five thousand rupees.
(1-A) Any person who contravenes any provisions of Chapter V-A shall be
punishable with imprisonment for a term which shall not be less than
three years but which may extend to seven years and also with fine
which shall not be less than ten thousand rupees.
(1-B) Any person who contravenes the provision of Section 38-J shall be
punishable with imprisonment for a term which may extend to six
9. S. 50(8) and (9) as amended by the Wild Life (Protection) Amendment Act, 2002.
10?5.-9 #3
12] WILDLIFE PROTECTION AND THE LAW 401

months, or with fine which may extend to two thousand rupees, or

with both: :
Provided that in case of a second or subsequent offence, the term of
imprisonment may extend to one year or the fine may extend to five thou-
sand rupees.
In addition to the above, the animal, animal article, trophy or meat, etc.,
and the tool, trap, vehicle, vessel or weapon used in the commission of
the offence shall be forfeited by the State Government; and licence or
permit for hunting, etc., and Arms Licence shall also be cancelled.
Further, Section 360 CrPC or the Probation of Offenders Act, 1958
shall not be made applicable to a person convicted in respect of hunting
in a sanctuary or national park, unless such a person is under 18 years
of age.
A new Section 51-A (incorporated by Amendment Act, 2002) provides:
When any person accused of, the commission of any offence relating to
Schedule I or Part II of Schedule II or offence relating to hunting inside the
boundaries of National Park or wildlife sanctuary or altering of the bound-
aries of such parks and sanctuaries, is arrested under the provisions of the
Act, then notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) no such person who had been previously con-
victed of an offence under this Act shall, be released on bail unless—
(a) the Public Prosecutor has been given an opportunity of opposing the
release on bail; and
(b) where the Public Prosecutor opposes the application, the Court is sat-
isfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence
while on bail.

Any attempt or abetment to contravene the provisions of this Act or rules

or orders made thereunder shall be deemed to be in contravention of the
provisions or orders or rules, as the case may be under this Act [S. 52].
Thus, actual commission of the offence and attempt or abetment of the
offence have been treated on par. Any wrongful, vexatious and unnec-
essary seizure of the property is also punishable with imprisonment for
a term which may extend to six months, or with fine which may extend
to 500, or with both.”
In Sansar Chand v. State of Rajasthan'*, the Supreme Court held that
it is not always possible to procure direct evidence against gang lead-
ers—who hire person for poaching, because they remain behind the
scene. Therefore, once their involvement is proved, they can be convicted/
punished on the basis of oral, extrajudicial confession corroborated by
other material.

19. Sch
12. (2010) 10 SCC 604: (zor1) 1 SCC (Cri) 79.
 ENVIRONMENTAL LAW |CHAP.
402

the forest land,

In some cases the Supreme Court has asked the user of
ect, like road
may be government, to pay some part of the cost of proj
spent by it on
through wildlife area, to the wildlife department to be
conservation and development of wildlife.’

3.5 Court to take cognizance

The court shall take cognizance of an offence under the Act when a
complaint is made by
(a) the Director of Wild Life Preservation or any other officer authorised
in this behalf by the Central Government; or
(aa) the Member-Secretary, Central Zoo Authority in matters relating to
violation of the provisions of Chapter IV-A;"* or
(b) the Chief Wild Life Warden, or any other officer so authorised in this
behalf by the State Government subject to such conditions as may be
specified by the Government; or
(bb) the officer-in-charge of the zoo in respect of violation of the provi-
sions of Section 33-J; or
(c) any person who has given a notice of not less than sixty days, in the
prescribed manner, of the alleged offence and his intention to make a
complaint, to the Central Government or the State Government or the
officer authorised as aforesaid.’

3.6 Presumption in certain cases

If, during the prosecution, it is established that a person is in possession,
custody or control of any captive animal, animal article, meat, trophy,
uncured trophy, specified plant or part or derivative thereof, it shall be
presumed that such person is in unlawful possession of such thing. The
burden of proof to contradict it shall lie on the accused person."

3.7 Power to compound offences

(1) The Central Government may, by notification, empower the Director
of Wild Life Preservation or any other officer not below the rank of Assistant
Director of Wild Life Preservation and in the case of a State Government in
the similar manner, empower the Chief Wild Life Warden or any officer of a
rank not below the rank of a Deputy Conservator of Forests, to accept from
any person against whom a reasonable suspicion exists that he has committed

13. T.N. Godavarman Thirumulpad v. Union of India, (2012) 12 SCC 236. In this case
the court ordered for the payment of 5 per cent of the cost to the Wildlife Department
of the J&K to be spent on conservation and development of wildlife for the construc-
tion of a road in a sanctuary area of Jammu-Udhampur area.
14. Incorporated by the Amendment Act, 2002.
1ST Ss $5
16. S: 57:
12] WILDLIFE PROTECTION AND THE LAW 403

an offence against this Act, payment of a sum of money by way of composi-

tion of the offence which such person is suspected to have committed.
(2) On payment of such sum of money to such officer, the suspected person,
if in custody, shall be discharged and no further proceedings in respect of the
offence shall be taken against such person.
(3) The officer compounding any offence may order the cancellation of
any licence or permit granted under this Act to the offender, or if not empow-
ered to do so, may approach an officer so empowered, for the cancellation of
such licence or permit.
(4) The sum of money accepted or agreed to be accepted as composition
under sub-section (1) shall, in no case, exceed the sum of twenty-five thou-
sand rupees:
Provided that no offence, for which a minimum period of imprisonment
has been prescribed in Section 51, shall be compounded. [S. 54]
The abovementioned powers are discretionary in nature and are applica-
ble to petty offences.

3.8 Operation of other laws not barred

Nothing in this Act shall be deemed to prevent any person from being
prosecuted under any other law for the time being in force, for any act or
omission which constitutes an offence under this Act or from being liable
under such other law to any higher punishment or penalty than that provided
by this Act:
Provided that no person shall be punished twice for the same offence.
[S. 56]
The above section has enunciated the principle of double jeopardy and res
judicata. Further, the higher punishment provided under any other law
can be awarded to the offender for an offence under this Act and simul-
taneously under any other law, if he is prosecuted under the other law.

3.9 Forfeiture of property derived from illegal hunting

and trade
A new chapter, Chapter VI-A, had been incorporated by the Wild Life
(Protection) Amendment Act, 2002.” This gives wide powers to for-
feit the property derived from illegal hunting and trade. It runs from
Sections 58-A to 58-Y.
According to this new chapter, if any person/associate of persons/trust
acquires property from illegal hunting or trade of wildlife, it shall be for-
feited to the State Government by the competent authority. Such property
can be forfeited after taking all necessary steps (enquiry, investigation or

17. Act received the assent of the President on 17-1-2003 and published in Gaz. of India
On 20-I-2003.
404 ENVIRONMENTAL LAW [CHAP.

survey in respect of any person, place, property, documents institution,

etc.) and after tracing and identifying any such property. em:
Such property acquired from illegal hunting and trade which is likely
to be concealed, transferred or dealt with in any manner which may
frustrate the proceedings of forfeiture can be seized or freezed. [S. 58-F|
The State Government may, publish in Official Gazette, authorise any
officer (not below the rank of conservator of forests) to perform the func-
tions of competent authority. Such competent authority shall also take
necessary measures to dispose of the property as per directions of the
State Government.
The competent authority is also empowered, while making investiga-
tion, to serve show-cause notice calling upon the persons to show why
the property should not be declared illegal and forfeited? The person
would be required to reply within a period of 30 days. Such person, to
whom notice has been served, should indicate the source of his income
and means by which such property was acquired. If he fails to appear/
represent within 30 days, the competent authority can proceed ex parte
to forfeit the property. Reasons for the same can be recorded in writing
before taking such decision.
Thus, the competent authority has powers to forfeit such illegal prop-
erty 1) after considering the explanation, if any; 2) material available
before it; 3) after giving a reasonable opportunity of being heard to the
person affected; and 4) by finding that all or any of the property in ques-
tion is/are illegally acquired property/properties. [S. 58-I] The burden of
proof to prove that that property is not illegally acquired property shall
be on the person affected during the proceeding mentioned above by the
competent authority to forfeit the property [S. 58-J].
During the investigation and proceeding to forfeit the property, if the
competent authority finds that only a part of the acquired property is
proved illegal, the authority shall make orders, giving an opportunity to
the person affected, to pay a fine equal to the market value of such part
of property in lieu of forfeiture. [S. 58-M]
If such person pays the fine, the order of forfeiture can be revoked by
the competent authority and the property shall be released.

3.10 Appeal from the orders of competent authority of forfeiture

The State Government may also constitute an Appellate Tribunal to hear
appeals from orders made by the “competent authority”. The Chairman
of this tribunal shall be a person who is or has been, or is qualified to
be, a High Court judge. The appeal should be preferred within 45 days
from the date on which the order is served on him. The tribunal is
also
empowered to hear the appeal within 60 days. [S. 58-O}
 I2] WILDLIFE PROTECTION AND THE LAW 405

The Act has barred the jurisdiction of other civil courts to entertain
such cases and to issue any injunction in respect of any action taken by
the “competent authority” and the Appellate Tribunal. [S. 58-Q|

3.11 Powers of civil court

The competent authority and the Appellate Tribunal shall have all the
powers of a civil court while trying a suit under the Civil Procedure
Code, 1908 (CPC). [S. 58-R]
Police officers of the Economics Intelligence Bureau, officers of
the Department of Forests and officers of the Directorate of Revenue
Intelligence shall render assistance to the competent authority and the
tribunal.
The competent authority and the tribunal have the right to amend any
order made by them within a period of one year to rectify any mistake
apparent in the record. [S. 58-V]

3.12 Punishment for acquiring property in relation to which

proceedings have been taken under this chapter
Any person who knowingly acquires any property in relation to which
proceedings are pending under Chapter VI-A shall be punishable with
imprisonment up to five years and with fine which may extend to 50,000
[S. 58-Y]

3.13 Offences by companies

(1) Where an offence against this Act has been committed by a company,
every person who, at the time the offence was committed, was in charge of,
and was responsible to, the company for the conduct of the business of the
company as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such
person liable to any punishment, if he proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an
offence against this Act has been committed by a company and it is proved
that the offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary,
or other officer of the company, such director, manager, secretary, or other
officer shall also be deemed to be guilty of that offence and shall be liable to
be proceeded against and punished accordingly. [S. 58]
The Act has declared that if anything is done in good faith under the
Act, or any damage is caused or is likely to be caused by the act of the
406 ENVIRONMENTAL LAW [c HAP.

officer or employee of the Central Government or the State Government,

no suit, prosecution or other legal proceedings shall lie against him.
This immunity has further been granted to the Chairperson, members,
Member-Secretary, officers or other employees of the wildlife protection
department.'®

3.14 Provision for reward’”

The Act provides that where a court imposes a sentence of fine or a sen-
tence of which fine forms a part, the court may order reward to be paid
to the person who renders assistance in the 1) detection of the crime, or
2) apprehension of the offenders out of the proceeds of fine not exceeding
50 per cent of such fine.?® When a case is compounded, the officer com-
pounding the offence may also order for such a reward.

3.15 Reward by the State

The State Government may empower the Chief Wild Life Warden to order
payment of reward not exceeding ten thousand rupees to be paid to a person
who renders assistance in the detection of the offence or the apprehension
of the offender, from such fund and in such manner as may be prescribed.
[S. 60-B]?!

3.16 Rights of Scheduled Tribes to be protected

The Act, under Section 65, has provided that anything contained in this
Act shall not affect the hunting rights conferred on the Scheduled Tribes
of the Nicobar Islands by the notification.”

3.17 Power of Central Government to make rules

(1) The Central Government may, by notification, make rules for all or
any of the following matters, namely:—
(a) conditions and other matters subject to which a licensee may
keep any specified plant in his custody or possession under
Section 17-F;
(ai) the term of office of members other than those who are mem-
bers ex officio; the manner of filling the vacancies, the proce-
dure to be followed by the National Board under sub-section (2)

18. S. Go.
19. S. 60-A.
20. Incorporated by the Amendment Act, 2002.
21. Ibid.
22. Notification of the Andaman & Nicobar Administration No.
40/97/F. No. G-635
Vol. III, dt. 28-4-1967, published in Gaz. of India on 28-4-1967.
A
12] WILDLIFE PROTECTION AND THE LAW 407

and allowances of those members under. sub-section (3) of

Section 5-A.2>
(b) the salaries and allowances and other conditions of appoint-
ment of chairperson, members and member-secretary under
sub-section (5) of Section 38-B;
(c) the terms and conditions of service of the officers and other
employees of the Central Zoo Authority under sub-section (7) of
Section 38-B;
(d) the form in which the annual statement of accounts of Central Zoo
Authority shall be prepared under sub-section (4) of Section 38-E;
(e) the form in which and the time at which the annual report of
Central Zoo Authority shall be prepared under Section 38-F;
(f) the form in which and the fee required to be paid with application
for recognition of a zoo under sub-section (2) of Section 38-H;
(g) the standards, norms and other matters to be considered for
granting recognition under sub-section (4) of Section 38-H;
(4) the form in which declaration shall be made under sub-section (2)
of Section 44;
() the matters to be prescribed under clause (b) of sub-section (4) of
Section 44;
(7) the terms and conditions which shall govern transactions referred
to in clause (b) of Section 48;
(k) the manner in which notice may be given by a person under
clause (c) of Section 55;
(/) the matters specified in sub-section (2) of Section 64 in so far as they
relate to sanctuaries and National Parks declared by the Central
Government.
(2) Every rule made under this section shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in two or
more successive sessions, and if before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree
in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified
form or be no effect, as the case may be, so however, that any such modi-
fication or annulment shall be without prejudice to the validity of anything
previously done under that rule. [S. 63]
Keeping in view the above rules, the Central Government has come out
with “Integrated Development of Wildlife Habitat Scheme, 2009” and
the National Wildlife Action Plan (2002-2016) for the better manage-
ment of wildlife of India and their habitat. The Integrated Development
of Wildlife Habitat Scheme, 2009 also deals with “recovery programme”
for saving critically endangered species and habitats.
The court, in T.N. Godavarman Thirumulpad v. Union of India”,
made it clear that the State Government cannot deny the conservation
23. Incorporated by the Amendment Act, 2002.
24. (2012) 3 SCC 277: AIR 2012 SC 1254.
408 ENVIRONMENTAL LAW [CHAP.

and protection of “critically endangered species” like “Asiatic Wild

Buffalo”, on the pretext that they do not have sufficient funds to under-
take such programmes as above mentioned scheme of 2009 envisages
100 per cent assistance from the Central Government.

3.18 Power of State Government to make rules?°

(1) The State Government may, by notification, make rules for carrying
out the provisions of this Act in respect of matters which do not fall within
the purview of Section 63.
(2) In particular and without prejudice to the generality of the forego-
ing power, such rules may provide for all or any of the following matters,
namely:—
(a) the term of office of members other than those who are members
ex officio, the manner of filling vacancies and the procedure to be
followed by the Board under sub-section (2) of Section 6;
(b) allowances referred to in sub-section (3) of Section 6;
(c) the forms to be used for any application, certificate, claim, dec-
laration, licence, permit, registration, return or other document,
made, granted, or submitted under the provision of this Act and
the fees, if any, therefor;
(d) the conditions subject to which any licence or permit may be
granted under this Act;
(dd) the conditions subject to which the officers will be authorised to
file cases in the court;
(e) the particulars of the record of wild animals (captured or killed)
to be kept and submitted by the licensee;
(ee) the manner in which measures for immunisation of livestock shall
be taken;
(f) regulation of the possession, transfer and sale of captive animals,
meat, animal articles, trophies, and uncured trophies;
(g) regulation of taxidermy;
(ga) the manner and conditions subject to which the Administrator
shall receive and manage the property under sub-section (2) of
Section 58-G;
(gb) the terms and conditions of the service of the Chairman and other
members under sub-section (3) of Section 58-N;
(gc) the fund from which and the manner in which payment of reward
under Section 60-B shall be made;
(b) any other matter which has to be, or may be, prescribed under
this Act. [S. 64]
From time immemorial animals are an integral part of our economy
as
they are used in various fields like.agriculture, transportation and amus
e-
ment. They are sources of milk and food. To derive maximum gain
from
animals, they have been exploited by human beings by using
coercive
25. As amended by the Amendment Act, 2002.
 12| WILDLIFE PROTECTION AND THE LAW 409

and painful means without paying heed to their suffering. Keeping in

mind over exploitation and cruelty to animals, many laws have been
passed to protect animals from cruelty.

4. PREVENTION OF CRUELTY TO ANIMALS ACT, 196076

The main object of the Act is to “prevent the infliction of unnecessary
pain or suffering on animals”. The Act extends to whole of India except
the State of Jammu and Kashmir. The Act is applicable to all living crea-
tures other than human beings.
For the promotion, welfare and protection of animals from being
subjected to unnecessary pain or suffering, the Central Government has
established an “Animal Welfare Board of India”.*” This Board shall be
a body corporate having perpetual succession and have the powers to
acquire, hold and dispose of property and may in its name sue and be
sued. That means any change of name of this Board shall not affect any
right and obligation of the Board conferred by this Act.

4.1 Constitution of the Board

(t) The Board shall consist of the following persons, namely:—
(a) the Inspector-General of Forests, Government of India, ex officio;
(b) the Animal Husbandry Commissioner to the Government of
India, ex officio;
(ba) two persons to represent respectively the Ministers of the Central
Government dealing with home affairs and education, to be
appointed by the Central Government.
(bb) one person to represent the Indian Board for Wild Life, to be
appointed by the Central Government.
(bc) three person who, in the opinion of the Central Government,
are or have been actively engaged in animal welfare work and
are well-known humanitarians, to be nominated by the Central
Government.
(c) one person to represent such association of veterinary practition-
ers, as in the opinion of the Central Government ought to be rep-
resented on the Board, to be elected by that association in the
prescribed manner;
(d) two persons to represent practitioners of modern and indigenous
systems of medicine, to be nominated by the Central Government;
(ge) one person to represent each of such two municipal corporations
as in the opinion of the Central Government ought to be repre-
sented on the Board, to be elected by each of the said corporations
in the prescribed manner;

26. This Act repealed the Prevention of Cruelty to Animals Act, 1890.
27. Per S. 4 of the Act.
 [CHAP.
410 EN VIRONMENTAL LAW
s actively
(f) one person to represent each of such three organisation
interested in animal welfare as in the opinion of the Central
Government ought to be represented on the Board, to be chosen
by each of the said organisations in the prescribed manner;
(g) one person to represent each of such three societies dealing with
prevention of cruelty to animals as in the opinion of the Central
Government ought to be represented on the Board, to be chosen
in the prescribed manner;
(b) three persons to be nominated by the Central Government;
(i) six Members of Parliament, four to be elected by the House of
the People (Lok Sabha) and two by the Council of States (Rajya
Sabha).
(2) Any of the persons referred to in clause (a) or clause (b) **[or clause (ba)
or clause (bb)] of sub-section (x) may depute any other person to attend any
of the meetings of the Board.
(3) The Central Government shall nominate one of the members of the
Board to be its Chairman and another member of the Board to be its Vice-
Chairman. [S. 5]
The Board will be reconstituted by the Central Government and such
reconstitution shall be for three years.”’ But the term of office of the
ex-officio member shall continue so long as he holds that office. If the
vacancy falls vacant in the middle of the term, the appointment shall be
for the remainder period. The Central Government may also remove a
member of the Board for reasons to be recorded in writing and after giv-
ing him a reasonable opportunity of showing cause against the proposed
removal.*° The Central Government shall also appoint a secretary of the
Board. Other officers and employees shall be appointed by the Board.

4.2 Functions of the Board

The functions of the Board shall be—
(a) to keep the law in force in India for the prevention of cruelty to ani-
mals under constant study, and advise the Government on the amend-
ments to be undertaken in any such law from time to time;
(b) to advise the Central Government on the making of rules under this
Act with a view to preventing unnecessary pain or suffering to ani-
mals generally, and more particularly when they are being transported
from one place to another or when they are used as performing ani-
mals or when they are kept in captivity or confinement;
(c) to advise the Government or any local authority or other person on
improvements in the design of vehicles so as to lessen the burden of
draught animals;
(d) to take all such steps as the Board may think fit for ameliorating of
animals by encouraging, or providing for, the construction of sheds,
28. Ins. by Act 26 of 1982, S. 5.
29. & 57K,
30. S. 6(d).
12] WILDLIFE PROTECTION AND THE LAW 4II

water-troughs and the like and by providing for veterinary assistance

to animals; Y
to advise the Government or any local authority or other person
in the design of slaughter-houses or in the maintenance of slaugh-
ter-houses or in connection with slaughter of animals so that unnec-
essary pain or suffering, whether physical or mental, is eliminated
in the pre-slaughter stages as for as possible, and animals are killed,
wherever necessary, in as humane a manner as possible;
(f) to take all such steps as the Board may think fit to ensure that
unwanted animals are destroyed by local authorities, whenever it is
unnecessary to do so, either instantaneously or after being rendered
insensible to pain or suffering;
to encourage, by the grant of financial assistance or otherwise, the
formation or establishment or pinjrapoles, rescue homes, animal shel-
ters, sanctuaries, and the like where animals and birds may find a
shelter when they have become old and useless or when they need
protection;
to co-operate with, and co-ordinate the work of, associations or bod-
ies established for the purpose of preventing unnecessary pain or suf-
fering to animals or for the protection of animals and birds;
to give financial and other assistance to animal welfare organisations
functioning in any local area or to encourage the formation of animal
welfare organizations in any local area which shall work under the
general supervision and guidance of the Board;
to advise the Government on matters relating to the medical care
and attention which may be provided in animal hospitals and to give
financial and other assistance to animal hospitals whenever the Board
thinks it necessary to do so;
to impart education in relation to the human treatment of animals and
to encourage the formation of public opinion against the infliction of
unnecessary pain or suffering to animals and for the promotion of
animal welfare by means of lectures, books, posters, cinematographic
exhibitions and the like;
(/) to advise the Government on any matter connected with animal wel-
fare or the prevention of infliction of unnecessary pain or suffering to
animals. [S. 9]
Chapter III of the Act has given a wide definition to the term “cruelty”
to animals which is as follows.”

4.3 Treating animals cruelly

(x) If any person—
(a) beats, kicks, over-rides, over-drives, over-loads, tortures or oth-
erwise treats any animal so as to subject it to unnecessary pain or
suffering or causes or, being the owner, permits, any animals to
be so treated; or

al, Sekki
 LAW
[CHAP.
412 ENVIRONMENTAL

anima!
(b) employs in any work or labour or for any purpose any sore
which, by reason of its age or any disease, infirmity, wound,
r,
or other cause, is unfit to be so employed or, being the owne
permits any such unfit animal to be so employed; or i“
wilfully and unreasonably administers any injurious drug or inju-
rious substance to any animal or wilfully and unreasonably causes
or attempts to cause any such drug or substance to be taken by
any animal; or
conveys or carries, whether in or upon any vehicle or not, any ani-
mal in such a manner or position as to subject it to unnecessary
pain or suffering; or
keeps or confines any animal in any cage or other recepta-
cle which does not measure sufficiently in height, length and
breadth to permit the animal a reasonable opportunity for move-
ment; or
keeps for an unreasonable time any animal chained or tethered
upon an unreasonably short or unreasonably heavy chain or
cord; or
being the owner, neglects to exercise or cause to be exercised rea-
sonably any dog habitually chained up or kept in close confine-
ment; or
being the owner of any animal, fails to provide such animal with
sufficient food, drink or shelter; or
without reasonable cause, abandons any animal, in circumstances
which render it likely that it will suffer pain by reason of starva-
tion or thirst; or
wilfully permits any animal, of which he is the owner, to go at
large in any street while the animal is affected with contagious
or infectious disease or, without reasonable excuse permits any
diseased or disabled animal, of which he is the owner, to die in
any street; or
offers for sale or, without reasonable cause, has in his possession
any animal which is suffering pain by reason of mutilation, star-
vation, thirst, overcrowding or other ill-treatment; or
mutilates any animal or kills any animal (including stray dogs) by
using the method of strychnine injections in the heart or in any
other unnecessarily cruel manner; or
solely with a view to providing entertainment—
(i) confines or causes to be confined any animal (including tying
of an animal as a bait in a tiger or other sanctuary) so as to
make it an object of prey for any other animal; or
(iz) incites any animal to fight or bait any other animals; or
(71) organises, keeps, uses or acts in the management of any place
for animal fighting or for the purpose of baiting any animal or
permits or offers any place to be used or receives money for the
admission of any other persons to any place kept or used for any
such purposes; or
12] WILDLIFE PROTECTION AND THE LAW 413

(0) promotes or takes part in any shooting match or competition

wherein animals are released from captivity for the purpose of
such shooting. [S. 11]
Any form of cruelty to animals as mentioned above is a punishable act.
In case of first conviction, one can be punished with fine which shall not
be less than 10 and may extend to 50; and in the case of subsequent/
second offence if committed within three years of the previous offence,
with fine which shall not be less than #25 but which may extend to = 100
or with imprisonment for a term which may extend to three months, or
with both.”
Failure to exercise reasonable care and supervision shall also amount
to commission of the offence.
The act of cruelty shall not include the dehorning of cattle, castration,
branding or nose-roping in the prescribed manner, destruction of stray
dogs in lethal chamber, or destruction or extermination of any animal
under the authority of law, etc.
The Madras High Court in K. Muniasamythevar v. Supt. of Police*?
has declared that “rekla race” of the bullock cannot permitted as the
cart man would be whipping to win the race. Such whipping amounts to
“treating animal cruelly” within the meaning of Section 11(qa). It may be
customary or hereditary function but a religious one. Under Article 51-A,
it is the duty of all the citizens of India to protect animals and their hab-
itat. Therefore, it is the duty of the State to see that the provisions of the
Act are duly implemented.
Section 11, Prevention of Cruelty to Animals Act, 1960 (PCAA) also
deals with offences of “treating animals with cruelty”. Ox-races, bullock
cart races or bullfights fall within the ambit of Section 11(a) of this Act.
Such races/fights cannot be permitted to be conducted because they are
customary, hereditary, or being conducted for more than 75 years.
It was also emphasised by the court that the Act of 1960 must be
effectively implemented and authorities are under an obligation to take
preventive action to ban such races. Positive action on the part of the
government authorities and police by preventing such cruelty is the need
of the hour. It was also suggested that to ensure prevention, there is an
urgent need to increase the amount of fine and period of imprisonment.
The State authorities and police were directed to ensure the prevention of
cruelty and rekla race or oxen race or any other activity of entertainment
causing cruelty to animals.
The Kerala High Court faced a typical situation when the Animal
Welfare Board of India and others advocated for the preservation of stray
dogs though suffering from fatal diseases or even of rabies, disassociating

32; 5: Ie
33. AIR 2006 Mad 255.
 [CHAP.
414. ENVIRONMENTAL LAW

victims of bite
themselves from any concern for human beings who fell
the right to life
of stray dogs.34 The court very rightly declared that
edence over
enshrined in Article 21 of the Constitution would take prec
isions to
the Animal Birth Control (Dogs) Rules, 2001, which had prov
PCAA
protect stray dogs even though afflicted with fatal diseases. The
wanted
under Sections 11(3)(b)(c) and 13 provide for destruction of “un
the
animals” by local authorities. Rules made in 2001 make provision for
le
preservation and immunisation of stray dogs, but they are not applicab
to dogs afflicted with fatal diseases or suffering from rabies. Therefore,
the order of Ombudsman directing corporations, municipalities and
panchayats to destroy such dogs was proper. Such infected animals can-
not be protected at the cost of invaluable human lives.
Even practising “phooka” or “doom-dev”, or injecting any substance
to improve lactation, which is injurious to health, is also punishable with
fine up to 1000 or with imprisonment up to two years, or with both.
Further, the animals may be forfeited by the government.

4.4 Destruction of the animal

If the owner of the animal is convicted of cruelty, the court, if satisfied that
it shall be cruel to keep the animal alive, can direct to destroy the animal.
The Magistrate, Commissioner of Police and District Superintendent of
Police may also direct the immediate destruction of such an animal.”
Besides “cruelty” to animals, the Act aims to regulate the use of ani-
mals for experimentation and exhibition.

4.5 Experimentation of animals

The Act does not prohibit performance of experiments on animals for
the purpose of 1) advancement by new discovery of physiological knowl-
edge, or 2) of knowledge which will be useful for saving or for prolong-
ing life or alleviating suffering or for combating any disease (whether
of human beings, animals or plants).3° The Central Committee has also
been empowered to control or supervise experiments on animals. It shall
be the duty of this committee to take necessary measures to ensure that
no animals is subjected to unnecessary pain or suffering before, during
or after the performance of experiments on them.
The committee can also make rules for this purpose. Such rules may
also include the registration of the person or institution carrying out the

34. Animal Welfare Board of India v. Ombudsman for Local Self Govt. Institutions,
AIR 2006 Ker 201. See also, People for Ethical Treatment of Animals v. Union of
India, WP (C) No. 44 of 2004, decided on 2-5-2005 (SC).
35.8. 13.
36.S. 14.
12] WILDLIFE PROTECTION AND THE LAW 415

experiments on animals and the supply of the report and other infor-
mation to the committee by such persons/institution experimenting on
the animals. Detailed rules have been made which are known as the
Experiments on Animals (Control and Supervision) Rules, 1968 by the
committee.
The committee may authorise its officer or any other person to enter
and inspect such institution or places where such experiments are carried
out. If it is found that the rules mentioned under Section 17 are not com-
plied with by any person or institution who is carrying out experiments
on animals, the committee, after giving an opportunity of being heard
in the matter, may prohibit such person or institution or may impose
conditions to carry an experiment on animals. If the person contravenes
any order so made by the committee, or violates any condition imposed
on the person/institution, he/the institution shall be punished with fine
up to 200.*” And the person in charge of such institution shall also be
deemed guilty of this offence.

4.6 Performing animals

The Act has also put restrictions on the exhibition and training of per-
forming animals. According to Section 22 of the Act no person shall
exhibit or train any performing animal unless 1) he is registered, or 2) the
animal has not been prohibited by the Central Government by a notifi-
cation in the Gazette as a performing animal. Any person or institution
who is desirous of exhibition or training any performing animal can get
himself/itself registered by making an application in the prescribed form
to the prescribed authority on payment of the prescribed fee.**
In N.R. Nair v. Union of India*®®, a Gazette notification, under
Section 22/(ii), was issued by the government dated 14 October 1998
whereby exhibition and training of bears, monkeys, tigers, panthers and
lions was prohibited. On behalf of the Indian Circus Federation, this
notification was challenged as arbitrary, and that the Act did not pro-
vide any such prohibition. Moreover, it put complete prohibition on the
training and exhibition of an animal specified in it. The Supreme Court
declared that powers under Section 22(i) can be exercised only when
the Central Government is satisfied that the training and exhibition of
animals will inflict unnecessary pain or suffering to animals. Welfare
of animals was the paramount consideration for issuing such a notifi-
cation. It was also made clear that Section 29 of the Act gives power to
the court to deprive a person convicted under the Act of ownership of

37. 3..B0%
38. Procedure has been mentioned under S. 23 of the Act and rules of 1973.
39. (2001) 6 SCC 84: AIR 2001 SC 2337.
416 ENVIRONMENTAL LAW [CH AP.

animals. Thus, a circus owner cannot retain such animals, though the
Act is silent on the question of the ownership of such animals. The court
was informed in the case that “rescue homes” have been set up by the
government at Tirupati, Visakhapatnam, Bangalore, Jaipur and Chennai
to accommodate such procured animals.

4.7 Penalty
Where a person exhibits or trains any performing animal without being
registered, or such exhibition or training is accompanied by unnecessary
pain or suffering, or exhibits or trains animals prohibited by the Central
Government, he shall be punished with a fine up to 500 or with impris-
onment which may extend to three months or with both.*°
The court may also deprive such a person of an animal who has been
convicted of an offence under this Act. But the court must be of the opin-
ion that the animal is likely to be exposed to further cruelty.
Offences under the Act are cognizable. Procedure provided under the
CrPC is applicable for search and seizure*! in the cases under this Act.
A prosecution for an offence shall not be instituted after the expira-
tion of three months from the date of the commission of the offence.*

4.8 Infirmaries
The State Governments have been authorised to appoint infirmaries for
the treatment and care of animals in respect of which offences have been
committed under this Act pending the case; or the animals can also be
sent to a pinjrapole or veterinary hospital/officer.
In the exercise of the powers conferred by the Act, the Central
Government has framed rules such as the Prevention of Cruelty (Capture
of Animals) Rules, 1979; the Breeding of and Experiments on Animals
(Control and Supervision) Rules, 1998.

4.9 Prevention of Cruelty to Animals (Slaughter House)

Rules, 2001*
The Central Government has notified these rules in exercise of the pow-
ers conferred by sub-sections (1) and (2) of Section 38, Prevention of

40. S. 26 such provision is not applicable to training animals for

military or police pur-
pose and animals kept in zoological garden, or educational and
scientific purpose.
41. Provided under Ss. 31, 32 and 33, Prevention of Cruelty to
Animals Act, 1960.
42.8. 36.
43. It consists of 9 rules. They came into effect on 1-1-2001.
12] WILDLIFE PROTECTION AND THE LAW 417

Cruelty to Animals Act, 1960. The rules have provided the definition of
“slaughter”** and “slaughter houses”*’.
The rules have prohibited the slaughter of any animal within the
municipal area until and unless one has a valid licence for that purpose.
Wherever there is a government slaughter house, slaughter cannot be
done anywhere else. If there is no government slaughter house in that
area, then killing can only take place in a licensed slaughter house, which
should be situated, where they are not a public nuisance or an environ-
mental hazard. Slaughtering of any animal at any place other than a
licensed slaughter house like in a house or dhaba is prohibited. Moreover
it has put a check on slaughtering of an animal, if an animal r) is preg-
nant, 2) has an offspring less than three months old, or 3) is under the age
of three months, or 4) has not been certified by a veterinary doctor that
it is in a fit condition to be slaughtered.
The rules have made provisions for the up keeping of slaughter houses
and that animals must be kept in good place having sufficient space, light
and water facility. Rule 5(1) to (5) provides:
I. every animal after veterinary examination shall be passed on to
a resting place, adequate in size and sufficient for the number of
animals that must be rested for 24 hours before slaughtering.
2. the space provided in the pens shall be not less than 2.8 sq m per
large animal and 1.6 sq m per small animal.
3. the animals shall be kept separately depending on their type and
class and protected from heat and rain.
4. the resting place shall have adequate facilities for watering and
post-mortem inspection.
It is also necessary that each animal must be examined by the veterinary
doctor before being slaughtered. Further, the veterinary doctor shall
examine thoroughly not more than 12 animals in an hour and not more
than 96 animals in a day.** The resting grounds in a slaughter house shall
have overhead protective shelters. One is also to take a precaution that
“no animal shall be slaughtered in a slaughter house in sight of other ani-
mals”’” and that “no animal shall be administered any chemical, drug or

44.58. 2(b):
Teuadar means the killing or destruction of any animal for the purpose of
food and includes all the processes and operations performed on all such animals
in order to prepare it for being slaughtered.
45.5. 2(c):
“Slaughter house” means a slaughter house wherein 10 or more than ro animals
are slaughtered per day and is duly licensed or recognised under a Central, State
or Provincial Act or any rules or regulations made thereunder.
418 ENVIRONMENTAL LAW [CHAP.

hormone before slaughter except drug for its treatment from any specific
disease or ailment”.
The rules have separate provisions for space for animals, procedure
for slaughtering,*® requirement for the slaughter house building,*” dis-
posal of legs, horns, hooves and other parts of animals,” proper drain-
age system, lairages,*! lighting and ventilation, and sterilisation of the
knives for slaughtering.
The rules also provide that one who is below 18 years of age and suf-
fering from any communicable or infectious disease shall not work in a
slaughter house.*?
The Animal Welfare Board of India (AWBI) or any person or Animal
Welfare Organisation authorised by it, may inspect any slaughter house
without notice to its owner or the person in charge of it at any time dur-
ing the working hours and send its report to the AWBI as well as to the
municipal or local authority for appropriate action, including initiation
of legal proceedings, if any, in the event of violation of any provisions of
these rules.**
Besides these rules, the Ministry of Environment and Forest have also
issued guidelines in obedience to the directions issued by the Supreme
Court of India in Laxmi Narain Modi v. Union of India*’. These guide-
lines relates to 1) transportation of animals; 2) loading and uploading;
3) effluent disposal; 4) solid waste disposal; 5) periodical inspection of
slaughter houses; etc. The court has directed all the States and Union
Territories to scrupulously follow these guidelines. It also directed to
modernise the slaughter houses and to constitute committees to keep a
vigil on them.*°

5. BIOLOGICAL DIVERSITY ACT, 20029”

The primary aim of the Act is to provide for 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
and for matters, connected therewith or incidental thereto. Moreover,

48.S. 6.
49S. Ze
50. S. 6(11).
Sh, Seihe
SZ, Se Fe).
53.R. 8.
54. R.9
55. (2013) 10 SCC 227. Decided on 27-8-2013.
56. Laxmi Narain Modi v. Union of India, (201 4) 2 SCC 417; decide
d on 23-8-2012.
57, The Act has been published in Gaz. of India on 5-2-2003,
Pt. II, S.I., Extra. 1 (N. 20).
12] WILDLIFE PROTECTION AND THE LAW 419

India is a party to the UN Convention on Biological Diversity signed at

Rio de Janeiro on June 1992.°°
In Centre for Environmental Law, World Wide Fund-India v. Union
of India®’, the Supreme Court, while defining the term “biological diver-
sity”, observed:
The main objective of the Act is the conservation of biological diversity, sus-
tainable use of its components and fair and equitable sharing of the benefits
arising out of the utilisation of genetic resources. Biodiversity and biological
diversity includes all the organisms found on our planet i.e. plants, animals
and micro-organisms, the genes they contain and the different ecosystems of
which they form a part. The rapid deterioration of the ecology due to human
interference is aiding the rapid disappearance of several wild animal species.
Poaching and the wildlife trade, habitat loss, human-animal conflict, epi-
demic, etc. are also some of the reasons which threaten and endanger some
of the species.
The court has explained that “biodiversity and biological diversity
includes all the organism found on our planet 7.e. plants, animals and
micro-organism, the genes they contain and the different ecosystems of
which they form a part.”°°
Therefore the conservation of biological diversity is “a common con-
cern of humankind” and is an integral part of the development process.
Moreover this Act should be read and harmoniously construed with the
Wildlife (Protection) Act, 1972 for the conservation and protection of
the species.
The Act consists of 65 sections and is divided into 12 chapters. It is
applicable to whole of India.
Various definitions have been provided under Section 2 of the Act.
Some of them are as follows:
(a) “benefit claimers” means the conservers of biological resources, their
by-products, creators and holders of knowledge and information
relating to the use of such biological resources, innovations and prac-
tices associated with such use and application;
(b) “biological diversity” means the variability among living organisms
from all sources and the ecological complexes of which they are
part and includes diversity within species or between species and of
ecosystems;
The court has explained that biological diversity “includes all the organ-
isms found on our planet, viz. the plants, animals and microorganisms.”*!

58. This convention has come into force on 29-12-1993.

59. (2013) 8 SCC 234; this case related to the translocation of and determining the sec-
ond home of Asiatic Lions living in Gir forests of Gujarat.
60. Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8
SCC 234, 252, per Hon’ble K.S.P. Radhakrishnan J.
61. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362, 373.
 420 ENVIRONMENTAL LAW
[CHAP.

(c) “biological resources” means plants, animals and miner me

parts thereof, their gentle material and by-products (excluding value
added products) with actual or potential use or value, but does not
include human genetic material; .
(d) “bio-survey and bio-utilisation” means survey or collection of species,
sub-species, genes, components and extracts of biological resource
for any purpose and includes characterisation, inventorisation and
bioassay; . . wit
(e) “sustainable use” means the use of components of biological diversity
in such manner and at such rate that does not lead to the long-term
decline of the biological diversity thereby maintaining its potential to
meet the needs and aspirations of present and future generations;
(f) “value added products” means products which may contain portions
or extracts of plants and animals in unrecognizable and physically
inseparable form.
The Act aims to regulate the access to biological diversity under Sections 3
to 7. To achieve its aim, the following prohibitions have been imposed:
I. No person (citizen of India, NRI and body corporate) shall under-
take biodiversity related activities without the approval of the
national authority. [S. 3]
. No person shall transfer to a foreigner/NRI/body corporate not
registered in India, any result of any research relating to any bio-
logical resources. [S. 4]
. Application for intellectual property rights not to be made without
the approval of the National Biodiversity Authority (NBA) inside
India or outside India. [S. 6]
Prior intimation must be given to the State Biodiversity Board (SBB)
for obtaining biological resource for commercial utilisation. [S. 7]
(This provision is not applicable to local people and community
area, including growers and cultivators of biodiversity, vaids and
hakims, practising indigenous medicine.)

5.1 National Biodiversity Authority (NBA)

The Act has constituted a NBA at the Centre with its head office at
Chennai, consisting of 15 members and one Chairman who shall be an
eminent person in the field of conservation and sustainable use of bio-
logical diversity.** The NBA is authorised to constitute other committee
to deal with agro-biodiversity and other committees for the efficient dis-
charge of its duties.
The Board shall advise the Central Government in matters relating
to conservation of biodiversity, its sustainable use and equitable shari
ng
of benefits. It shall also advise the State Governments in the selec
tion of
6 Ledaitin
12] WILDLIFE PROTECTION AND THE LAW 421

areas of biodiversity importance. It is also authorised to take any meas-

ures necessary to oppose the grant of intellectual property rights in any
country outside India.
Prior approval of the NBA is necessary
1. to obtain any biological resource occurring in India, and
2. to apply for patent or intellectual property protection whether in
India or outside India.
The Board has authority to approve or reject the application for such
approval after giving the applicant an opportunity of being heard. The
NBA shall give public notice of every approval granted by it.*

5.2 State Biodiversity Board (SBB)

The State Government may also establish SBB which shall be body
corporate.
The function of the State Boards shall be to 1) advise the State
Government on matters relating to the conservation of biodiversity, sus-
tainable use, and equitable sharing of benefits arising out of the utilisation
of biological resources; 2) regulate by granting of approvals or otherwise
requests for commercial utilisation or bio-survey and bio-utilisation of
any biological resources by Indians; and 3) perform such other necessary
functions to carry out the provisions of the Act.®
Further, one has to seek prior approval of the State Board to obtain
biological resources for commercial utilisation after giving prior intima-
tion. The Board after making such enquiries as it feels necessary, may
approve, or, by order, prohibit or restrict any such activity if it is det-
rimental or contrary to the objects of conservation and sustainable use
of biodiversity, etc., after giving the applicant an opportunity of being
heard.*
The State Governments are also authorised to notify the areas of bio-
diversity importance as “biodiversity heritage site”. State Governments
shall also frame schemes for compensating or rehabilitating any person
or section of people economically affected by the declaration.°’

5.3 Biodiversity Management Committee

Every local body shall constitute a “Biodiversity Management
Committee” within its area for the purpose of conservation, sustainable
use and documentation of biological diversity including preservation of

63. $).28.
64.S. 19.
65. Su2%.
66. S, 24.
67.5: 37
422 ENVIRONMENTAL LAW [CHAP.

habitat, conservation of landraces, folk varieties and cultivators, domes-

ticated stocks and breeds of animals and microorganism and chronicling
of knowledge relating to biodiversity.°* The State Government shall also
provide local biodiversity funds.

5.4 Duties of Central Government

rt. It is for the Central Government to develop national strategies,
plans, programmes for sustainable use biological diversity, etc.
2. The Central Government shall also issue directions to the State
Government to take immediate measures to ameliorate the situa-
tion if any area rich in biological diversity or resource and its hab-
itat are being threatened by overuse, abuse or neglect.”
3. It shall also undertake measures for assessment of environmental
impact of the project which is likely to have adverse effect, and also,
where appropriate, provide public participation in such assessment.
4. The Act also provides that the Central Government shall also
endeavour to respect and protect the knowledge of local people
relating to biological diversity as recommended by the National
Biodiversity Board (NBB), including” the registration of such
knowledge at local level.
5. The Central Government is also empowered to notify any species
which is on the verge of extinction or likely to become extinct in
the near future, or regulate collection thereof for any purpose, and
take necessary steps to rehabilitate and preserve these species.”!
6. The Central Government may, in consultation with the NBB, des-
ignate institutions as repositories for different categories of bio-
logical resources. Such repository shall keep in safe custody the
biological material including voucher specimens.”

5.5 Penalties
Whoever contravenes or attempts to contravene or abets the contraven-
tion of Section 3 (to obtain biological resources with the permission of
the National Board), Section 4 (results of research not to be transferred
to a foreigner or NRI without the permission of the National Board), and
Section 6 (application of intellectual property right not be made without
the approval of the National Board) shall be punished with imprison-
ment which may extend to five years, or with fine up to ¥10,00,000, and

68.S. 41.
62.8. 36.
70. S. 36(5).
71.35.38.
TLDs 99
12] WILDLIFE PROTECTION AND THE LAW 423

where the damage caused exceeds ¥10,00,000, such fine may commen-
surate with the damage caused, or with both.
If a person obtains biological resources for commercial purpose with-
out the permission of the SBB, he will be punishable with imprisonment
which may extend to three years, or with fine up to ¥5,00,000, or with
both.”
If any of the offences is committed by a company, or with the consent
or connivance of or is attributable to any neglect on the part of any man-
ager, secretary or other officer, they will be deemed guilty and punished
as per provisions mentioned above.”
The provisions of this Act shall be in addition to, and not in dero-
gation of, the provisions in any other law, for the time being in force,
relating to forests and wildlife.”

5.6 Cognizance of offences

No court shall take cognizance of any offence under this Act except on
complaint made by —
(a) the Central Government or any authority or officer authorised in this
behalf by the Government, or
(b) any benefit claimer who has given notice of not less than thirty days
in the prescribed manner of such offence and of intention to make
a complaint, to the Central Government or the authority or officer
authorised as aforesaid.”

6. PROTECTION OF ANCIENT
MONUMENTS AND PUBLIC PARKS

6.1 Ancient Monuments and Archaeological Sites and

Remains Act, 19587’
The Act was passed “for the preservation of ancient and historical mon-
uments and archaeological sites and remains of national importance, for
the regulation of archaeological excavations and for the protection of
sculptures, carvings and other like objects”. The Collector of the area
has been authorised to protect and preserve the protected monuments”

F3/Si$ 5:
74. S. 56.
yp Sn
76. S. 61.
77. It came into effect on 15-10-1959, see, Notification No. $.0. 2307, dt. 15-10-1959,
Gaz. of India, Extra., 1959, Pt. Il, See, S. 3(ii), 537. It consists of 39 sections.
78. S. 2(i), “protected monument” means any ancient monument which is declared to be
of national importance by or under this Act. And as per S. 2(a):
“ancient monument” means any structure erection or monument, or any tumulus
or place of interment, or any cave, rock-sculpture, inscription of monolith, which
 CHAP.
424 ENVIRONMENTAL LAW |

from misuse, pollution or desecration and can take necessary measures

for the same”? which he thinks fit. Such protection has also been adhered
to all ancient and historical monuments and all archaeological sites
and remains which have been declared by the Ancient and Historical
Monuments and Archaeological Sites and Remains (Declaration of
National Importance) Act, 1951 (71 of 1951) or by Section 126 of the
States Reorganisation Act, 1956 (37 of 1956) to be of national impor-
tance. Since the preservation and protection of protected monument lies
with the Central Government, it may acquire the protected monuments
under the provisions of the Land Acquisition Act, 1894. If the Central
Government apprehends that a protected monument is in danger of
being destroyed, injured, misused, or allowed to fall into decay,*° penal-
ties have also been provided for causing destruction, alteration, removal,
defacing, imperilling, or misusing the protected monuments.*! The new
Ancient Monuments and Archaeological Sites and Remains (Amendment
and Validation) Act, 2010 now requires that no change on any property
within the too m prohibited area and the additional 200 m regulated
area around a monument can be made without permission from the
newly established “National Monuments Authority” (NMA).
Besides human activities, natural forces also cause erosion, destruction
and decay of the national monuments. Pollution negatively impacts his-
torical monuments and buildings around the world. The threat is in the
risk of losing these irreplaceable structures forever. Many of these mon-
uments have cultural and aesthetic value that is beyond price. Acid rain
and global warming have emerged as two main causes of such destruc-
tion. Acid rain occurs when fossil fuel emissions containing sulphur
dioxide combine with moisture in the air to form acidic precipitation.
When acid rain falls on historical monuments of limestone or marble,
a chemical reaction takes place which has a corrosive effect on these
structures.** The reaction dissolves the material, leading to permanent
damage. Famous case of “yellowing of Taj Mahal”, or Taj Trapezium

is of historical, archaeological or artistic interest and which has been in existence

for not less than one hundred years, and includes—
(1) the remains of an ancient monument,
(17) the site of an ancient monument,
(77) such portion of land adjoining the site of an ancient monument as may be
required for fencing or covering in or otherwise preserving such monu-
ment, and
(iv) the means of access to, and convenient inspection of, an ancient
monument.
79. See, Ssx6.
80. Section of the Act.
81. See, S. 30.
82. See, Robert Angus Smith, Air and Rain, the Beginnings
of aChemical Climatology
(1872).
;
12] WILDLIFE PROTECTION AND THE LAW 425

case* is an instance of the effect of acid rain causing damage to the

world famous historical monument. Similarly heat, noise, radioactive
substances, water pollutants also contributes in the decay and destruc-
tion of ancient monuments.

6.2 Public parks

Green belts around the city and public parks have been declared to be the
“lung space” or “air purifiers” of a city. The zonal laws make it compul-
sory to have provision for 60 per cent space for public parks/gardens/pub-
lic places. In T. Damodar Rao v. Municipal Corpn. of Hyderabad*, the
court declared that whatever flora and fauna we have are representative
samples of nature and no developmental activity including construction
of houses is permitted on the land reserved for public parks. Similarly,
the Supreme Court in Sachidanad Pandey v. State of W.B.* held that
government must always be alive to ecological considerations while the
land of a public park (zoological garden) is given in lease to any person.
It has been observed in Bangalore Medical Trust v. B.S. Muddappa*®
that the “main object of public parks and playgrounds is the promotion
of the health of the community by means of ‘ventilation’ and recreation.
It is the preservation of the quality of life of the community...”. In this
case, an open space reserved for public park was converted into a civic
amenity for the purpose of hospital/nursing home and allotted to a pri-
vate person for that purpose. The court stated:
Public park as a place reserved for beauty and recreation is associated with
growth of the concept of equality and recognition of importance of common
man. It is a ‘gift from people to themselves’. Its importance has multiplied
with emphasis on environment and pollution. In modern planning and devel-
opment it occupies an important place in social ecology.

83. M.C. Mehta v. Union ofIndia, (1997) 2 SCC 353.

84. AIR 1987 AP 171.
85. (1987) 2 SCC 295, in this case the petitioners challenged the transfer of the land the
Zoological Garden, Calcutta to a leading hotel company Taj Group, for the construc-
tion of a five star hotel. The court upheld the decision of the government.
86. (1991) 4 SCC 54: AIR 1991 SC 1902.
 CHAPTER 13
Coastal Zone Management in India

Coastal zone of a country has always been important. It plays a very sig-
nificant role in environmental management. The coastal zone has been
defined by various scholars and experts differently. Ketchum defined the
area as “the band of dry land and adjacent ocean space (water and sub-
merged land) in which terrestrial processes and land uses directly affect
oceanic processes and uses, and vice versa”!. Coasts being dynamic in
nature are influenced in many ways all around the world. Influences such
as river systems may reach far inland increasing the complexity and scale
of the zone. Increasing human activity in these areas has become a cause
of great concern. These activities, which includes construction, hotels,
mining and industrial activities, are responsible for disrupting the nat-
ural coastal systems. It is also to be noted that coastal margins equate
to only 8 per cent of the world’s surface area but provide 25 per cent
of global productivity. Stress on this environment comes with approxi-
mately 70 per cent of the world’s population being within a day’s walk
of the coast. Two-thirds of the world’s cities occur on the coast. Valuable
resources such as fish and minerals are considered to be common prop-
erty and are in high demand for coastal dwellers for subsistence use,
recreation and economic development.’ Since it is by nature common
property, they have been a subject of intensive and specific exploitation.
As a whole, human activity in the coastal zone generally degrades the
systems by taking unsustainable quantities of resources. The effects are
further exacerbated with the input of pollutant and highly toxic wastes.
Therefore, the coastal zones require management. Coastal States has
always special interest in safeguarding their coastal areas. As a result
of which countries like UK, US, Norway, Italy, Sweden, Korea, Japan,

1. B.H. Ketchum, The Water’s Edge: Critical Problems of the Coastal Zone (MIT
Press, Cambridge 1972). In Coastal Zone Workshop, 22-5-1972-3-6-1972, Woods
Hole, Massachusetts.
2. F. Berkes, Common Property Resources: Ecology and Community-Based
Sustainable Development (London 1989).
428 ENVIRONMENTAL LAW |CHAP.

Australia, Sri Lanka, India and China have taken up and evolved mech-
anism to protect and preserve their coastal zones. We find the mention
of management of the coastal area since olden times but the claim over
them was internationally recognised in 1945. On 28 September 1945; US
President Harry S$. Truman issued two proclamations that established
government control of natural resources in areas adjacent to the coast-
line. One of these proclamations was titled “Policy of the United States
With Respect to the Natural Resources of the Subsoil and Sea Bed of the
Continental Shelf”, and stipulated in its operative clause:
the Government of the United States regards the natural resources of the sub-
soil and sea bed of the continental shelf beneath the high seas but contiguous
to the coasts of the United States as appertaining to the United States, subject
to its jurisdiction and control.°
In 1982, the UN Convention on the Law of the Sea was declared, which
has defined belt of coast. It recognises the right of coastal States to have
jurisdiction over the resources of some 38 million square nautical miles
of ocean space. To the coastal State falls the right to exploit, develop,
manage and conserve all resources— fish or oil, gas or gravel, nodules or
sulphur—to be found in the waters, on the ocean floor and in the sub-
soil of an area extending 200 miles from its shore. Waters extending at
most 12 nautical miles (22 kms; 14 miles) from the baseline (usually the
mean low-water mark) is the coastline of a State. The right of a State also
extends to exclusive economic zone which extends from the outer limit of
the territorial sea to a maximum of 200 nautical miles (370.4 kms) from
the territorial sea baseline, thus it includes the contiguous zone.‘
India has got a coastline of 7600 kms. Therefore, coastline manage-
ment is very essential. India has notified its
coastal stretches of seas, bays, estuaries creeks, rivers and backwaters which
are influenced by tidal action (in the landward side) up to 500 meters from
the High Tide Line (HTL) and the land between the Low Tide Line (LTL)
and HTL as the Coastal Regulation Zone.
Most simply the coast can be described as an area of interaction between
the land and the ocean. Ketchum‘ defined the area as:

3. Text in Department of State Bulletin, 30-9-1945, 48.

4. Art. 56, UN Convention on the Law of the Sea, 1982; it recognises the right of coastal
States to jurisdiction over the resources of some 38 million square nautical miles
of ocean space. To the coastal State falls the right to exploit, develop, manage
and
conserve all resources—fish or oil, gas or gravel, nodules or sulphur to be
found in
the waters, on the ocean floor and in the subsoil of an area extending
200 miles from
its shore.
5. B.H. Ketchum, The Water’s Edge: Critical Problems of the Coast
al Zone (MIT
Press, Cambridge 1972). In Coastal Zone Workshop, 22-5-1972-3-6-1972, Wood
s
Hole, Massachusetts.
13] COASTAL ZONE MANAGEMENT ININDIA 429

The band of dry land and adjacent ocean space (water and submerged land)
in which terrestrial processes and land uses directly affect oceanic processes
and uses, and vice versa.
Whilst acknowledging the importance of physical coastal zone, the
inclusion of ecosystems, resources and human activity within the zone
is important. It is the human activities that require proper management.
These human activities are responsible for disrupting the natural coastal
systems to a great extent. Moreover, two-third of India is surrounded
by sea and has a big coastal zone. Therefore, management of this zone
carries significance. Increasing population, economic and developmental
activities in these areas has caused stress on coastal ecology.
Various coastal countries have passed various laws to preserve, con-
serve and protect their coastal zones and its ecology. The US passed the
Coastal Zone Management Act in 1972; Sri Lanka passed the Coastal
Conservation Act® in 1981; and the UK, though do not have such Act
to protect and preserve the coastal zones, but has covered its various
aspects under the Environment Protection Act, 1990. The Coastal Zone
Management (CZM) was previously governed by the CZM Notification
issued in 1991 which has recently been replaced by the Coastal Regulation
Zone (CRZ) Notification of 2011.

1. COASTAL REGULATION ZONE NOTIFICATION, 2011

Economic activities and recreational facilities in and around these zones
have given rise to the idea of “coastal zone management sustainability”.
Valuable minerals and availability of fishes has also added to their impor-
tance. Increasing developmental activities like construction of railways,
roads, residential housing schemes and hotels has caused lot of stress on
coastal zones. Therefore, a holistic approach was required to deal with
these problems. Hence, the Ministry of Environment and Forests (MoEF)
has issued the CZM regulation notification in the exercise of powers pro-
vided under Section 3(1) and 3(2)(v), Environment (Protection) Act, 1986
and Rule 5(3)(d) of the Environment (Protection) Rules, 1986, declar-
ing coastal stretches as CRZ and regulating activities in the CRZ, New
Delhi, on 19 February 1991. Since then there were national and interna-
tional developments in this field. The National Environment Policy, 2006
also declared that there should be “comprehensive approach to integrate
coastal management by addressing linkage between coastal areas, wet-
land and river system in relevant policies, regulation, and programs”.
Therefore, to fill up those gaps and to keep pace with new developments,
the Central Government notified new CRZ Notification, 2011.
6. It has defined coastal zone as “an area lying within a limit of 300 m landwards of
Mean High Water Line and a limit of two kms seawards of the Mean Low Water
Line”. [S. 42]
430 ENVIRONMENTAL LAW [CHAP.

1.1 Objectives of CRZ Notification, 20117

The CRZ Notification was announced with the objectives 1) to ensure
livelihood security to the fisher communities and other local communities
living in the coastal areas; 2) to conserve and protect coastal stretches,
its unique environment and its marine area; 3) to promote development
through sustainable manner based on scientific principles taking into
account the dangers of natural hazards in the coastal areas, sea level rise
due to global warming; and 4) to restrict the setting up and expansion
of any industry, operations or processes and manufacture or handling
or storage or disposal of hazardous substances. It consists of eight rules.

1.2 Physical limits of zones®

The Central Government declared that the coastal stretches of seas, bays,
estuaries, creeks, rivers and backwaters which are influenced by tidal
action (in the landward side) up to 500 m from the HTL? and the land
between the LTL and the HTL as CRZ. According to clause 2, the dis-
tance from the HTL shall apply to both sides, in the case of rivers, creeks
and backwaters and may be modified on a case to case basis for reasons
to be recorded in writing while preparing the CZM plans, provided that
this distance shall not be less than 100 m or the width of the creek, river
or backwaters, whichever is less. “No Development Zone” have been
reduced from 200 m to 100 m. These zones have been divided as follows.

t2°CRe
The areas that are ecologically sensitive and the geomorphological fea-
tures which play a role in maintaining the integrity of the coast are:
1. Mangroves; in case mangrove area is more than 1000 sq m, a
buffer of 50 m, along the mangroves, shall be provided.
Corals and coral reefs and associated biodiversity.
Sand-dunes.
Mud flats which are biologically active.
National parks, marine parks, sanctuaries, reserve forests, wildlife
eu
habitats and other protected areas under the provisions of the Wild
Life (Protection) Act, 1972 (53 of 1972); the Forest (Conservation)
Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986
(29 of 1986) including biosphere reserves.

7. It was issued on 6-1-201T.

8. See, R. 7.
9. The High Tide Line (HTL) means the line on the land up to which
the highest water
line reaches during the spring tide. The HTL shall be demarcated
uniformly in all
parts of the country by the demarcating authority or authorities
so authorised by the
Central Government, in accordance with the general guidelines
issued in this regard.
13] COASTAL ZONE MANAGEMENTININDIA 431

6.Salt marshes.
7.Turtle nesting grounds,
8.Horse shoe crabs habitats.
9. Sea grass beds.
o. Nesting grounds of birds.
11. Areas or structures of archaeological importance and heritage
sites.
12. The area between the LTL and the HTL.

12. 21RLZo
Such area includes areas which have been developed up to or close to
shoreline. Here “developed area” means “area within the existing munic-
ipal limits or in other existing legally designated urban areas which are
substantially built-up and has been provided with drainage and approach
roads and other infrastructural facilities, such as water supply and sew-
erage mains”.

2.2.3 CRA Jt
Such areas include area which are relatively less disturbed and do not
belong to above mentioned two areas. These areas are within municipal
limits or in other legally designated urban areas, and are not substan-
tially built up.

1.2.4 CRZIV
It includes “the water area from the Low Tide Line to twelve nautical
miles on the seaward side”, and “the water area of the tidal influenced
water body from the mouth of the water body at the sea up to the influ-
ence of tide which is measured as five parts per thousand during the
driest season of the year”.

1.2.5 CRZ V: areas requiring special consideration

These areas have been identified for the purpose of protecting the criti-
cal coastal environment and difficulties faced by local communities; for
example, critically vulnerable coastal areas (CVCA) such as Sunderbans
region of West Bengal and other ecologically sensitive areas; and CRZ
area of Greater Mumbai, Goa, and Kerala including the backwaters and
backwater islands.

1.3 Prohibited activities’

All new activities have been prohibited in CRZ I area. The rules permit
10. R. 3.
432 ENVIRONMENTAL LAW [CHAP.

I. projects relating to Department of Atomic Energy; !

2. pipelines, conveying systems including transmission lines;
3. facilities that are essential for activities permissible under CRZ I;
4. installation of weather radar for monitoring of cyclones movement
and prediction by Indian Meteorological Department; |
5. construction of trans harbour sea link and without affecting the
tidal flow of water, between the LTL and the HTL; and
6. development of green field airport already approved at only Navi
Mumbai."
In areas between the LTL and the HTL, if they are not ecologically sen-
sitive areas, some activities have been permitted like exploration and
extraction of natural gas; construction of trans harbour sea links, roads
on stilts or pillars without affecting the tidal flow of water; desalination
plants; salt harvesting by solar evaporation of seawater; construction
of dispensaries, schools, public rain shelter, community toilets, bridges,
roads, jetties, water supply, drainage, sewerage which are required for
traditional inhabitants; and storage of non-hazardous cargo such as edi-
ble oil, fertilisers, and food grain within notified ports.”
In CRZ II areas, construction of buildings shall be permitted only on
the landward side of the existing road, or on the landward side of exist-
ing authorised structures, and the “existing” norms of floor space index
(FSI) or floor area ratio (FAR) shall be followed. Other activities like
desalination plants and associated facilities; storage of non-hazardous
cargo, such as edible oil, fertilisers and food grain in notified ports; and
facilities for generating power by non-conventional power sources and
associated facilities have also been permitted.
CRZ Ill areas will be marked as “No Development Zone (NDZ)
areas”'’. Construction activities are prohibited except construction/
reconstruction of dwelling units of traditional coastal communities,
including fisherfolk, which may be permitted between too and 200 m
from the HTL along the seafront in accordance with a comprehensive
plan prepared by the State Government or the Union Territory in consul-
tation with the traditional coastal 11 communities, including fisherfolk,
and incorporating the necessary disaster management provision, sani-
tation and recommendation made by the concerned State or the Union
Territory Coastal Zone Management Authority (CZMA) to National
Centre for Sustainable Coastal Management Authority (NCZMA)
for approval by the MoEF. The following activities may be permitted
in NDZ:
11. R. 8(1)(i).
12.R. 8(1)(zz).
13. Means an area up to 200 m from HTL on the landward side
in case of seafront and
100 m along tidal influenced water bodies or width of the creek
whichever is less.
[R. 8(x)(iii)]
 COASTAL ZONE MANAGEMENT IN INDIA 433

(a) agriculture, horticulture, gardens, pasture, parks, play field, and

forestry; ;
) projects relating to Department of Atomic Energy;
(c) mining of rare minerals;
) salt manufacture from seawater;
) facilities for receipt and storage of petroleum products and liquefied
natural gas as specified in Annexure II;
f) facilities for regasification of liquefied natural gas subject to condition;
) facilities for generating power by non-conventional energy sources;
) foreshore facilities for desalination plants and associated facilities;
) weather radars;
) construction of dispensaries, schools, public rain shelter, community
toilets, bridges, roads, provision of facilities for water supply, drain-
age, sewerage, crematoria, cemeteries and electric sub-station which
are required for the local inhabitants may be permitted on a case to
case basis by CZMA;
(k) construction of units or auxiliary thereto for domestic sewage, treat-
ment and disposal with the prior approval of the concerned Pollution
Control Board or Committee;
(!) facilities required for local fishing communities such as fish drying
yards, auction halls, net mending yards, traditional boat building
yards, ice plant, ice crushing units, fish curing facilities and the like;
(m) development of green field airport already permitted only at Navi
Mumbai.
In CRZ IV, traditional fishing and allied activities have been permit-
ted, but discharge of pollution from oil and gas exploration and drilling,
mining, boathouse and shipping and untreated sewage, effluents, ballast
water, ship washes, fly ash or solid waste from all activities including
from aquaculture operations will require prior approval of the authority.
Following activities have been prohibited in CRZ:"*
1. Setting up of new industries and expansion of new industries except
projects of atomic energy and industries which require waterfront
or foreshore facility like port, harbour, light-house, navigation
safety facility, Coastal Police Station, etc.
Manufacture or handling or storage or disposal of hazardous sub-
stances as specified in the notifications of the Indian Government
in the MoEF No. S.O. 594(E) dated 28 July 1989, $.O. 966(E) dated
27 November 1989 and GSR 1037(E) dated 5 December 1989.
Setting up and expansion of fish processing units including ware-
housing (excluding hatchery and natural fish drying in permitted
areas).
Setting up and expansion of units/mechanisms for disposal of
wastes and effluents, except facilities required for

14. R. 3.
434 ENVIRONMENTAL LAW [c HAP.

(a) discharging treated effluents into water course with the

approval under the Water (Prevention and Control of
Pollution) Act, 1974;
(b) storm water drains; bi
(c) treatment of wastes and effluents arising from hotels and
beach resorts located in CRZ areas other than CRZ I and
disposal of the treated wastes and effluents; and |
(d) treatment of domestic or municipal sewage in the Union
Territories of the Andaman & Nicobar Islands and
Lakshadweep and disposal of the treated effluents.
5. Discharge of untreated wastes and effluents from industries, cities
or towns and other human settlements.
6. Dumping of city or town waste for the purposes of landfilling or
otherwise; the existing practice, if any, shall be phased out within
a reasonable time not exceeding three years from the date of this
notification.
7. Dumping of ash or any wastes from thermal power stations.
8. Land reclamation, bunding or disturbing the natural course of sea
water except those required for construction or modernisation or
expansion of ports, harbours, jetties, wharves, quays, slipways,
bridges and sea links and for other facilities that are essential for
activities permissible under the notification or for control or coastal
erosion and maintenance or clearing of waterways, channels and
ports or for prevention of sandbars or for tidal regulators, storm
water drains or for structures for prevention of salinity ingress and
sweet water recharge.
\O . Mining of sands, rocks and other substrata materials, except
a) those rare minerals not available outside the CRZ areas, and
b) exploration and extraction of Oil and Natural Gas.
ro. Harvesting or withdrawal of groundwater and construction of
mechanisms, therefore, within 200 m of the HTL; in the 200 m to
500 m zone it shall be permitted only when done manually through
ordinary wells for drinking, horticulture, agriculture and fisheries.
t1. Construction activities in [CRZI'’] except as specified in Annexure |
of this notification.
12. Any construction activity between the LTL and the HTL except
facilities for carrying treated effluents and waste water discharges
into the sea, facilities for carrying sea water for cooling purposes,

15. CRZ I includes areas that are ecologically sensitive and important, such as
national
parks/marine parks, sanctuaries, reserve forests, wildlife habitats,
mangroves,
corals/coral reefs, areas close to breeding and spawning grounds of fish and
other
marine life, areas of outstanding natural beauty/historically/heritage
areas, areas
rich in genetic diversity, etc., and area between LTL and the HTL.
See, Annexure I,
R. 6.
13] COASTAL ZONE MANAGEMENT IN INDIA 435

oil, gas and similar pipelines and facilities essential for activities
permitted under this notification.
13. Dressing or altering of sand-dunes, hills, natural features including
landscape changes for beautification, recreational and other such
purposes, except as permissible under this notification.
It also has special provisions for Goa, Kerala, Greater Mumbai and
CVCAs like Sunderban Mangrove area, Chilka and Bhitarkanika (Orissa),
Gulf of Khambhat and Kutch (Gujarat), Malwan (Maharashtra), Gulf
of Mannar (Tamil Nadu), East Godavari and Krishna Delta (Andhra
Pradesh), Karwar and Kundapur (Karnataka).
It also provides that there are some coastal areas which require spe-
cial consideration like CRZ falling in Greater Mumbai, Kerala and Goa.
Special provisions have been detailed for slum rehabilitation and redevel-
opment of dilapidated, cessed and unsafe building in the CRZ areas of
the Greater Mumbai."
Everybody has to seek the prior approval for any activity in coastal
zone area.'”
In G. Sundarrajan v. Union of India'*, the court made it clear that
CRZ Notification of zorr did not prohibit the projects already in opera-
tion and granted clearance prior to the date of the issue of this or previ-
ous notification, i.e. 19 February 1991 and 6 January 2or1T. In this case
the Kudankulam Nuclear Power Plant was established in 1989 in collab-
oration with Russia. Both the notifications did not prohibit the atomic
power project which were already in existence and have also permitted
in CRZ Notification.'? It was proved before the court that all necessary
precautions with regard to code of Management of Radioactive Waste,
2007; Atomic Energy (Safe Disposal of Radioactive Waste) Rules, 1987;
Atomic Energy (Radiation Protection) Rules, 1971; Hazardous Waste
(Management and Handling) Rules, 1989 and others were adopted. All
safety measures were taken as per national and international standards.
Here the Kudankulam Nuclear Power Plant was established in the State
of Tamil Nadu (situated on the shore of Gulf of Mannar near South-East
tip of India) and within the CRZ. The SLP was filed in the Supreme

16. R. 8(v).
17. The coastal States and Union Territory Administrations were required to prepare
within one year from the date of the notification, Coastal Zone Management Plan
(hereinafter referred to as the Management Plan), identifying and clarifying the
Regulation Zone Areas within the respective territories, in accordance with the
guidelines contained in the main Notification and those plans were required to be
approved with or without modifications by the Ministry of Environment and Forest,
Government of India. As a result of which all coastal States and Union Territories
have prepared their plans including Andaman and Nicobar, Lakshadweep islands.
18. (2013) 6 SCC 620, 698.
19. Notification of 2011: Rule 4(ii)(b).
436 ENVIRONMENTAL LAW [CHAP.

Court. While approving the project, the court examined all the environ-
mental aspects including sustainability of the project in the area.
The Supreme Court has made it clear in UT of Lakshadweep v.
Seashells Beach Resort2° that no resort could be commissioned under
a judicial order in disregard of serious objections raised by the admin-
istration and in violation of conditions of the CRZ Notification, 2011.
Therefore no permission can be given by anyone for the construction of
resort in the “No Development Zone” falling within 50 m of the HTL.

1.4 Measures to combat pollution

The notification has also evolved certain measures to contain and con-
trol the pollution in sea. It has prohibited the discharge of untreated
waste and effluents from industries, cities or towns and other human
settlements and dumping of city or town wastes, including construction
debris, industrial solid wastes, fly ash for the purpose of landfilling.?!
Setting up and expansion of units or mechanism for disposal of wastes
and effluents and manufacture or handling oil storage or disposal of haz-
ardous substance as specified in the notification of MoEF from time to
time have also been prohibited. Except a few, construction and expan-
sion of present industries have been proscribed.
A separate notification has also been issued by the Central Government
on 6 January 2o11 for the environmental management of Andaman and
Nicobar and Lakshadweep islands”? in the exercise of powers conferred
by sub-section 1 and clause (v) of sub-section 2 of Section 3, Environment
(Protection) Act, 1986. It has been provided that Andaman and other
islands shall be managed by the Island Coastal Regulation Zone (ICRZ)
and Integrated Island Management Plans (IIMP) respectively.

1.5 Some important judicial pronouncements

The Supreme Court in Indian Council for Enviro-Legal Action v. Union
of India** has examined the validity of the two amendments made in
1994 by which the roo m zone was reduced to 50 m. The court observed:
it would be the duty and responsibility of the Coastal States and Union
Territories in which the stretches exist, to see that the notifications issued
under the provisions of Environment (Protection) Rules as well as the noti-
fications issued, declaring the coastal stretches as Coastal Regulation Zone
should be properly and duly implemented and the various restrictions on

20. (2012) 6 SCC 136: AIR 2012 SC 2309.

21. Para. 3.
22. Copies of said Gaz. Notification were made available on 25-2-2
010. It consists of 8
rules.
23. (1996) 5 SCC 281.
13| COASTAL ZONE MANAGEMENT ININDIA 437

the setting up and expansion of industries, operation or process etc. in the

Regulation Zone should be strictly enforced ... scrupulously try to protect the
ecology and environment and should shoulder greater responsibility of which
the court can have closer awareness and easy monitoring.
The court declared that the reduction of NDZ from 100 m to 50 m was
contrary to the object of the Environment Act, as it was not made for
valid reasoning. Further, the court disallowed the fencing which hin-
dered the public access to the beach as it negates the right to way of
general public which they are free to enjoy.
The Synreme Court bas nae mei a the above case in

tealaeaiih iinsc ceeihamaeiiaaiiadterms cabins illegal construction in1 prohibited CASE PILOT
areas, i.e. CRZI area, cannot be permitted and should be demolished. It
also declared that the coastal areas in question were critically vulnerable
coastal areas (CVCA) and “ecologically sensitive area”. The notification
of zo11 declared Vembanad Backwaters as CVCA (area in question)
which is second largest wetland in India. There is an urgent need to pro-
tect such fragile ecosystem.
It was reiterated in Goan Real Estate and Construction Ltd. v. Union
of India*> that anything done/constructed up to the date of judgment will
not be covered by this judgment, i.e. up to 16 August 1994. In Essar Oil
Ltd. v. Halar Utkarsh Samiti**, the Supreme Court made it applicable in
marine national parks and sanctuary also. Similarly, in M. Nizamuddin
v. Chemplast Sanmar Ltd.’’, the court held that transportation of vinyl
chloride monomer (VCM) through the pipelines from ship to the factory
can be permitted if the MoEF has issued “no objection” after considering
the EIA.
Goa Foundation Vv. Diksha Holdings (P) Lid.**, the court held that
hotel cor on pei constructions can be donein1 CRZ II as per noti- CASE PILOT

fication of 1991 and with the approval of the Central Government. The
court also quoted with approval judgment of Calcutta High Court”? clar-
ifying that such construction can be done, because

24. (2013) 8 SCC 760.

25. (2010) 5SCC 388.
26. AIR 2004 SC 1834. The case is related to laying of pipelines in Jamnagar Marine
National Parks and Sanctuary (Gujarat). The court observed that the State
Government must see, whether the damage in respect of the proposed activity is
reversible or not, ifit is irreversible it amounts to destruction and permission may not
be granted unless there is positive proof of the betterment of the lot of the wildlife.
Since there was no such finding in EIA, the laying of pipelines was permitted.
27. (2010) 4 SCC 240: AIR 2010 SC 1765. In this case the Coastal Zone Management of
Tamil Nadu, 1996 was in question.
28. (2001) 2 SCC 97: AIR 2001 SC 184.
29. People United for Better Living in Calcutta v. State of W.B., AIR 1993 Cal 215.
 LAW |CHAP.
438 ENVIRONMENTAL

e dealing with the matter,

[I]t is now a well-settled principle of law that whil
and in the manner
the social problems shall have to be dealt with in the way
e consideration of
it calls for, since benefit to the society ought to be the prim
lem ought to be
the law courts and ecological imbalance being a social prob
prosper without
decided by a court of law so that the society may thrive and
any affection.
at the
[The court also observed:] the society shall have to prosper, but not
have
cost of the environment and in the similar vein, the environment shall
e
to be protected but not at the cost of the development of the society —ther
shall have to be both development and proper environment and as such, a
balance has to be found out and administrative actions ought to proceed in
accordance therewith and not dehors the same.*°
S)yaeannat Ben
< Ve
=
a VOURION Of
; Fp

3
ER Be
HAIG" is a landmark judgment in the field of
CASE PILOT CZM (popularly known as the Chilka lake case) as it brought into light
the fact of the non-implementation of the CRZ notification. Though the
notification was enacted in 1991, but it was never brought into force.
Therefore, the petitioner filed this writ for stoppage of intensive and
semi-intensive type of prawn farming in the ecologically fragile coastal
areas and for prohibiting the use of wastelands and wetlands for prawn
farming. The petitioner also sought for the constitution of a National
CZMaA to safeguard the marine and coastal areas. The allegation of the
petitioner was that the coastal States were allowing big business houses
to develop prawn farms on a large scale in the coastal States in viola-
tion of the Environment (Protection) Act, 1986 and various other provi-
sions of law. Intensified shrimp culture has brought to the fore a serious
threat to the environment and ecology of the area. The court appointed
National Environmental Engineering Research Institute (NEERI) to visit
and report. The report of NEERI disclosed that the impact was on sur-
face water, contamination of soil and groundwater, and destruction of
mangrove vegetation. The petitioners alleged that the shrimp is violative
of the Environment (Protection) Act, 1986 and the notification of 1991.
The court declared that no shrimp culture industry or shrimp farm
can be set up in coastal regulation zones. Such farm in existence must
be demolished and removed. But this was not applicable to traditional
shrimp culture farms. The court further directed to constitute an “author-
ity” with necessary powers to protect the ecologically fragile coastal
areas, sea shore, water fronts and other area. It should be headed by the
retired High Court judge. The authority so constituted by the Central
Government shall implement the “polluter pays principle” and “precau-
tionary principle” which have become part of the law of our land. The
authority shall recover the compensation from the existing shrimp farms

30. Ibid, 97 CWN 142, per U.C. Banerjee J, this case was related to wetland of Calcutta
city (Salt Lake area).
31. (1997) 2 SCC 87: AIR 1997 SC 811.
13] COASTAL ZONE MANAGEMENT IN INDIA 439

for reversing the ecology and payment to individual sufferers. The work-
ers affected by the closure of the shrimp culture industries shall also be
paid compensation.
In Sneha Mandal Coop. Housing Society Ltd. v. Union of India*,
the Maharashtra High Court clarified that the development cannot be
permitted at the cost of environment, but they have to go hand in hand.*?
In this case, Sneha Mandale, an NGO, raised objection that construc-
tion of bulk-receiving-station, helipad and change of garden/playground
to residential houses on the Back Bay Reclamation area (in Greater
Bombay area) amounted to violation of the CRZ notification of 1991
and Section 3, Environment (Protection) Act, 1986. Since this area fall
in coastal zone, any activity required prior approval of the authority,
known as Maharashtra CZMA.** The court held that the construction
of bulk-receiving-station was not in violation of the CRZ notification, as
the construction of the station started prior to the issuance of the said
notification and that “the larger public interests should be weighed and
since there is utmost need in the locality for the bulk-receiving-station,
the larger public interest should prevail, particularly when two public
interests compete with each other”. But the court held that the construc-
tion of the helipad in this area contravened provisions of the said notifica-
tion of 1991 and is also against the provisions of the AirCraft Act, 1934.
Similarly, the court held that change of use from garden/playground to
government housing/residence on Plot Nos. 146 and 147 is in contraven-
tion of the CRZ notification, 1991.
Similarly, the Madras High Court in Consumer and Civic Action
Group v. Union of India® held:
the environment shall have to be protected, but not at the cost of the develop-
ment of the society. Both the development and environment shall coexist and
go hand in hand. Therefore, a balance has to be struck and administrative
actions ought to proceed in accordance therewith, and not dehors the same.
In this case, the petitioners objected to the constructions of high-rise
building and road near sea side, i.e. within 500 m of HTL covered by
CRZ II area. The High Court got the matter examined by two expert

32. AIR 2000 Bom 121.

33. The court quoted with approval Indian Council for Enviro-Legal Action v. Union
of India, (1996) 5 SCC 281, where it was declared that we have to balance various
interests including economic, ecological, social and cultural. In the said judgment
vide para. 31, the Supreme Court further observed that while economic development
should not be allowed to take place at the cost of ecology or by causing widespread
environment destruction and violation; at the same time, the necessity to preserve
ecology and environment should not hamper economic and other development.
34. This authority was constituted as per direction of the Supreme Court given in Indian
Council for Enviro-Legal Action v. Union ofIndia, WP (C) No. 664 of 1993, decided
on 21-8-1998 (SC).
35. AIR 2002 Mad 298.
 440 ENVIRONMENTAL LAW

bodies/committees and concluded that since the construction was

beyond the HTL, therefore, not hit by CRZ notification. The petitioner
was found guilty of laches as they were aware of the construction activity
of the respondent and they raised objection after a lapse of more than a
year.
In Goa Foundation v. Konkan Railway Corpn.**, the Central
Government decided to lay a broad gauge between Bombay to Mangalore
via Goa. The Goa foundation alleged that such activity would adversely
affect the fragile ecology of the coastal area. It requires prior approval of
the Central Government. The court declared that the CRZ notification
of 1991 prescribes that there would be restrictions on the setting up and
expansion of industrial operation or processes in the said areas. But land
reclamation, bunding and laying down railway line could not be consid-
ered as industry. So the CRZ notification did apply to this case. The court
chose not to interfere in a policy decision of the government in which
heavy investments were already made. The court observed that no devel-
opment is possible without some adverse effect on ecology and environ-
ment, but public utility projects cannot be abandoned and it is necessary
to adjust the interests of the people as well as the necessity to maintain
the environment of the area. Similarly, the Supreme Court in Dahanu
Taluka Environment Protection Group v. Bombay Suburban Electricity
Supply Co. Ltd.*’ cleared the proposed Thermal Power Projects. Flouting
of government guidelines and adverse impact on the coastal environment
did not cut ice, as it was felt that power generation and making the same
available is most essential for overall economic progress and is a devel-
opmental activity. The court appreciated that well-informed groups are
participating in the decision-making processes of the government con-
cerning such developmental activities.

36. (1994) 1 Mah LJ ar.

37. (1991) 2 SCC 539; also see, Goa Foundation v.
Konkan Railway Corpn., AIR 1992
Bom 471.
 CHAPTER 14
International Environmental Law

The perception of the global concern about environment is of recent

origin. As Caldwell observed, “At the beginning of the twentieth cen-
tury, neither environment as an integrative ecological concept nor the
biosphere as the planetary life-support system was an object of public
international concern.” But the second half of the 2oth century wit-
nessed a sharp rise in the international concern about the environmental
degradation and ecological imbalances. The Silent Spring! published in
1962 brought about a new movement—environment movement, on the
international arena. This book though brought to fore the adverse effects
of the use of pesticide, but made a public opinion world over against
the use of pesticide, fungicide and rodenticide. In decades to follow, the
United Nations Organisation (UNO) and its other specialised bodies
started with organised programmes and expressed international concern
about the common safety of the planet and declared that environmental
degradation and ecological imbalances are not of national concern but of
global concern. Therefore, all the national governments should chalk out
a common global programme to deal with such problems.

1. HISTORICAL PERSPECTIVE
Prior to 1950, the environment received little attention of the nations as
transboundary problem, but such challenges were viewed as local or to
some extent regional problems. Therefore, even regional organisations
elicited legislative and regulatory reaction of local nature only. But the
continuous growth of population, over and unbridled exploitation of
natural resources and increasing demand for a better life has led to newer
scientific and technological innovations, which, in turn, have posed seri-
ous risk to human being, flora and fauna and the earth. Moreover, these
problems like acid-rain and effects of air and water pollution affecting

1. Rachel Carson, Silent Spring (1962).

 ENVIRONMENTAL LAW [CHAP.
442
lem of
the environment without boundary barriers has made it a prob
problem,
international regime. Looking at the international nature of the
ems.
international law has also started dealing with environment probl
on-
The earliest international agreement/covenant relating to envir
lop
ment is of 1967 relating to fisheries.? Thus, early attempts to deve
, etc.,
international environmental law was relating to birds, fishes, seals
only. In 1872, Switzerland proposed for an International Regulatory
Commission for the protection of birds which led to the formation of
International Ornithological Congress and Convention to Protect Birds
Useful to Agriculture in 1902. This convention aimed to grant absolute
protection to certain birds, prohibition on their killing or destruction. It
also had provisions relating to nests, eggs, breeding places and methods
of capture, etc. It also allowed capture of birds for the scientific use and
research and population increase.
As far as pollution is concerned, the Water Boundaries Treaty (1909)
was first to prevent and control the water pollution in the US and
Canada. Another step towards transboundary coordination without
compromising national sovereignty was the foundation of International
Committee for the Preservation of Birds between the US and the coun-
tries of European continent in the year 1922.
One of the major events in the first half of the 2oth century was the
Convention on Preservation of Flora and Fauna in Their Natural State
in the year 1933.° The aim of this convention was to preserve the natu-
ral fauna and flora of certain parts of the world, particularly of Africa,
by means of national parks and reserves, and regulating hunting and
collection of species. It also has provisions for the preservation of for-
ests and to encourage domestication of wild animals of economic impor-
tance and prohibition of certain methods of hunting; for example, use of
poison, explosives, dazzling lights, nets, pits and snares, etc. It also put
restrictions on trade of trophies and export of certain skins and furs.
Major drawback of this convention was that there was no institutional
arrangement for the administration of provisions and compliance of the
provisions.

1.1 Development during 1945-2003

After World War IJ, a new phase started in which nations started
addressing the environmental issues and started forming international
organisations. It was also during this period that there was a growing
awareness about the relationship between economic development and
environmental degradation and its preservation. During this period, the
main reasons for the development of international environmental law
2. The convention between France and Britain, dt. 17-1 1-1867.
3. London, 8-11-1883.
14] INTERNATIONAL ENVIRONMENTAL LAW 443

was the advancement in science and technology and the precedent unsci-
entific exploitation of the natural resources. Moreover, a by-product
of industrial revolution created transboundary pollution problems;
for example, acid rain in North America because of the industries in
Canada. Thus, the necessity for international action on environmental
problems was brought to the world’s attention first by scientists and then
by the inter-governmental meetings. United Kingdom v. Albania‘ (Corfu
Channel case of 1949) is an example of application of international law
for transboundary injuries from mines in territorial waters which endan-
gered international navigation.
The establishment of the UNO in 1945 gave an impetus to the inter-
national environmental law. In 1954, the International Convention for
the Prevention of Pollution of the Sea by Oil was agreed upon. Similarly,
the African Convention on the Conservation of Nature and Natural
Resources was made in 1968. The fundamental principles of this con-
vention was that the contracting States shall undertake to adopt the
measures necessary to ensure conservation, utilisation and development
of soil, water, floral and faunal resources in accordance with scientific
principles and with due regard to the best interests of the people. Now,
accordingly, it became the duty of each party to identify, protect, con-
serve and handover to the future generations the cultural and natural
heritage primary to that State. A World Heritage Committee was also
established to which each party shall submit an inventory of its national
heritage.
In 1970, the Organisation for Economic Cooperation and Development
(OECD) also established a Committee for Environment, which also
marked the beginning of recognition of environmental problems.
In 1971, the Convention on International Liability for Damage
Caused by Space Objects was made. The basis of the liability under the
Convention was not on the proof of wrongfulness, but on the absolute
damage caused by space objects to the surface of the earth or to aircrafts
in flight.

2. SOURCES OF INTERNATIONAL
ENVIRONMENTAL LAW
The development of international law is of recent origin. It has been orig-
inated, nurtured and developed only during the last six decades. The end
of World War II was the beginning of environmental law. The National
Environmental Policy Act, 1960 (US) was the first modern specific legis-
lation in this field. Similarly “Earth Day” celebration on 22 April 1970
in the US marked the beginning of movement in this field. A sequel to
it, First International Conference on Human Environment was held in
4. 1949 ICJ 4.
444 ENVIRONMENTAL LAW [CHAP.

Stockholm in 1972. Between 1960 to this date, much development has

taken place and environmental law has blossomed as full fledged branch
of law. Various activities have helped it to establish and they have become
sources of environmental law. These important sources are stated below.

2.1 Treaties, protocols and conventions

They have always been regarded main sources of international environ-
mental law. Some of the important environment treaties/conventions and
protocols are the Kyoto Protocol, 1997; the Antarctic Treaty, 1959; the
Convention for the Conservation of Antarctic Seals, 1972; the Convention
on the Conservation of Migratory Species of Wild Animals, 1979; the
1991 Protocol on Environmental Protection to the Antarctic Treaty; the
Basel Convention, 1989; the Agreement on the Conservation of African-
Eurasian Migratory Water birds, adopted in 1995, entered into force in
1999; the Convention on Migratory Species of Wild Animals (CMS),
1991, entered into force in 1994; the Convention on the Conservation of
European Wildlife and Natural Habitats, 1979; the Montreal Protocol
on Substances that Deplete the Ozone Layer; the Protocol to the Vienna
Convention for the Protection of the Ozone Layer, 1987; the Cartagena
Protocol, 2000; Agenda 21, Convention on Biological Diversity and
Convention on Climate Change, 1992; the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, 1973; and
Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade,
1998. Some of them are legally binding on the Member States. Sometimes
these agreements are bilateral or sometimes multilateral. Protocols are
subsidiary agreements of a primary treaty.

2.2 Customary international law

The customary international law includes the practices prevailing
amongst countries and followed in their relationship from a long time.
This has also become an established source of international environmen-
tal law. These are the norms and rules that countries follow as a mat-
ter of custom and they are so prevalent that they bind all States in the
world. Examples of such law are the duty to warn other States promptly
about icons of an environmental nature and environmental damages
to which another State or States may be exposed’, and Principle 21 of
the Stockholm Declaration (“good neighbourliness” or sic utere tuo ut
alienum non laedas).

5. It found place in Trail Smelter Arbitration Award and Lake Lanou

x Arbitration,
France v. Spain (Lake Lanoux case), (1957) 24 ILR ror.
14] INTERNATIONAL ENVIRONMENTAL LAW 445

The principles laid down in international declarations also become

part of international customary environmental law, like the Stockholm
Declaration, 1972; the Rio Declaration, 1992; the World Charter for
Nature, 1982; and the Third UN Conference on the Law of the Sea, 1982.
Various principles applied in the adjudication of environmental cases
(principle of sustainable development, polluter pays principle, precau-
tionary principle, principle of inter-generational equity) are the outcome
of principles declared in these international conferences. These principles
have also become basis of many decisions in national and international
courts.° In the Legality of Nuclear Weapons case’, Weeramantry J, in his
dissenting opinion stated:
Environmental law incorporates a number of principles which are violated
by nuclear weapons. The principle of inter-generational equity and the com-
mon heritage principle have already been discussed. Other principles of envi-
ronmental law, which this Request enables the Court to recognize and use
in reaching its conclusions, are the precautionary principle, the principle of
trusteeship of earth resources, the principle that the burden of proving safety
lies upon the author of the act complained of, and, the ‘polluter pays prin-
ciple’, placing on the author of environmental damage the burden of mak-
ing adequate reparation to those affected. There have been juristic efforts in
recent times to formulate what have been described as ‘principles of ecologi-
cal security’ —a process of norm creation and codification of environmental
law which has developed under the stress of the need to protect human civi-
lization from the threat of self-destruction [...|
These principles of environmental law thus do not depend for their valid-
ity on treaty provisions. They are part of customary international law. They
are part of the sine qua non for human survival.
These principles have been adopted and incorporated in national laws by
many countries including India.

2.3 Judicial decisions

Article 38(1)(d) of the statute of the International Court of Justice (ICJ)
has also recognised judicial decisions as one of the sources of interna-
tional environmental law. The ICJ has decided many important cases
involving environmental issues and put the environment on firm footing.
Some of them are United Kingdom v. Albania*, the Lake Lanoux case’,
Belgium v. Spain'°, Australia v. France", the Aerial Herbicide case’,

6. For example, United Kingdom v. Albania, 1949 ICJ 4.

7. ICJ Rep 1996.
8. 1949 [CJ 4.
9. (1957) 24 ILR ror.
10. 1970 ICJ Rep 3.
11. 1974 ICJ Rep 253. |
12. See, Aerial Herbicide Spraying, Ecuador v. Colombia, 1-4-2008 (ICJ).
 CHAP.
[CH
446 LAW
ENVIRONMENTAL

nouncements have
the Pulp Mills case’? and others. These judicial pro
of environment
recognised and explained various sources and principles
ICJ have created
law. As a result of large number of environmental cases,
contribution
the Chamber for Environmental Matters in July 1993. The
broader
of ICJ is appreciable looking to number of cases decided and
the
principle of environmental law laid down. The following are some of
significant judicial pronouncements.

2.3.1 Trail Smelter Arbitration'*

The Trail, British Columbia was the largest lead and zinc smelting com-
plex in the British Empire. In 1925 and in 1927, two large, 400 foot
smoke stacks were built. There was a resulting increase in the amount of
sulphur emitted into the air. Within that same time period, the amount of
sulphur released from the plant on a monthly basis almost doubled from
what it had been in 1924. Its 400 foot high stacks sent plumes of noxious
smoke down the Columbia river valley. Upon crossing the US-Canadian
border, the smoke caused damage to crops and forests in Washington
State. American farmers claimed compensation for crop losses and meas-
ures to ensure smoke reduction. The dispute raised thorny issues of how
international law should respond to transboundary air pollution. It took
almost 15 years and two precedent-setting decisions from an interna-
tional arbitration tribunal to finally settle these questions.
Initially, the US agreed to bring the issue before the International Joint
Commission (IJC). In its 1931 report, the I{C recommended that Canada
should limit its sulphur dioxide emission limits and asked Canada to
compensate the US for a sum of US $350,000 for damages caused to the
farmers, but the US did not accept the offer. In 1935, the two countries
agreed to arbitration constituted under Convention of Ottawa, signed
on 15 April between US and Canada, 1935. Meanwhile, Canada again
offered to compensate US $350,000 for all damages caused before 1932.
In April 1938, after extensive expert assessments, the tribunal acknowl-
edged that the smelter had caused damage after 1932. Then in 1941, it
was held by the Arbitration Tribunal 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.
It was determined that the Canadian Government should pay the
US $78,000 for damage that the Trail Smelter had done to the State
of Washington from 1932 to 1 October 1937. This compensation was
13. Argentina v. Uruguay (Pulp Mills on the River Uruguay), 4-5-2006 (ICJ).
14. United States v. Canada, (1939) 33 AJIL 182. See also, Trail Smelter Arbitral Decision,
United States v. Canada, (1941) 35 AJIL 684.
14] INTERNATIONAL ENVIRONMENTAL LAW 447

primarily for damage done to land along the Columbia river valley in
the US.
The tribunal held:
under the principles of international law, as well as the law of the United
States, 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.
This case, commonly known as the “Trail Smelter Arbitration”, is a land-
mark in environmental law. It is recognised as the earliest articulation of
two core principles of international environmental law that States have a
duty to prevent transboundary environmental harm, and that they have
an obligation to pay compensation for the harm they cause. It also sad-
dled the “polluter pays principle” on the firm footing for transnational
pollution issues. Thus it became the first international ruling on trans-
boundary air pollution and created a global precedent. The Trail Smelter
Arbitration is regarded as the “wellspring” and “fountainhead” of inter-
national environmental law, and the arbitrators as “trail-blazing”,» « “cou-
rageous and creative”.

2.3.2 France v. Spain’ (“Lake Lanoux Arbitration”)

Lake Lanoux is situated on the southern slope of the Pyrenees, in French
territory (the Department of Pyrénées-Orientales). The lake waters flow
out through a single stream, the Fontvive, which is one of the sources of
the Carol River which, after about 25 kms from lake Lanoux in French
territory, crosses the Spanish border at Puigcerda and continues its course
in Spain for about 6 kms before joining the Segre river, which ultimately
empties into the Ebro. Before entering Spain, the waters of the Carol teed
the Puigcerda canal, which is the private property of the Spanish town
of Puigcerda.
The France and Spain signed boundary treaties on 26 May 1866,
2 December 1856, 14 April 1862 and 26 May 1866 for the regulation of
waters of common use.
In the 1950s, France began developing a plan to divert water from lake
Lanoux over a 789 m 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 that the
plan would violate its water rights under a series of treaties signed in 1866.
The Arbitration Tribunal issued an award in 1957, which rejected Spain’s
arguments because the French plan promised not to alter the volume of
water entering Spain through the Carol river. Further, the tribunal stated

15. (1957) 24 ILR rot.

448 ENVIRONMENTAL LAW [c HAP.

that the treaties did not constitute a reason to subjugate the general rule
that standing and flowing waters are subject to the sovereignty of the
State where they are located. The tribunal decided that in carrying out
works for the utilisation of the waters of lake Lanoux in the conditions
mentioned in the scheme for the utilisation of the waters of lake Lanoux,
the French Government was not committing a breach of the provisions
of the Treaty of Bayonne of 26 May 1866 and the Additional Act of the
same date. However, while Spain disregarded the facts to concentrate its
pleadings on a matter of principle, France made its case by proving the
absence of actual damage to Spanish interests.
The tribunal declared that “territorial sovereignty ... must bend before
all international obligations”, negating the doctrine of absolute sover-
eignty. It ruled that the upstream State has a right to make reasonable
use of water and it did not accept the principle of natural flow or absolute
riverine integrity.
The lake Lanoux arbitration has become a locus classic of inter-
national environmental law. Some elements of the award broke new
ground, heralding, for instance, the provisions set in the Convention on
the Non-Navigational Uses of International Watercourses, 1997. Others
helped clarifying the content of well-established principles, such as the
principle of good faith in international relations. The case also became
popular because the tribunal made authoritative and extensive inquiry of
the norms of international customary law regarding the use of interna-
tional waterways.

2.4 Stockholm Declaration, 1972

The International Conference on Human Environment’ in the year
1972, at Stockholm was the turning point in the international environ-
ment law. It was for the first time that world nations gathered at a place
under the UN leadership to evolve a common strategy to combat envi-
ronmental degradation, pollution and ecological imbalances. Twenty-six
principles were declared in this conference which are known as Magna
Carta on Human Environment. India participated in the conference and
also signed the declaration known as Stockholm Declaration of 1972.
The then Prime Minister, Mrs Indira Gandhi, was the first head of the
State to address this conference.
The Stockholm Declaration also became a basis for subsequent devel-
opment of environmental law in the form of numerous bilateral and
multilateral conventions and other legally binding instruments. It would
be necessary to point out that this conference opted for a non-binding
declaration of the principles and as observed it contains the principles

16. UN International Conference on Human Environment, 1972 (5-16 June 1972).

14] INTERNATIONAL ENVIRONMENTAL LAW 449

“embodying the aspirations ef the world for a better environment”. It

did not impose specific obligations on the World States to fulfil the duties
and obligations agreed in the Stockholm Declaration. In spite of the
“non-binding character” of the principles, it is regarded to be the foun-
dation of modern international environmental law.
Some of the principles of this declaration are as follows:

1. Principle t.— Man has the fundamental right to freedom, equality

and adequate conditions of life in an environment of quality that permits
a life of dignity and well being; and he bears a solemn responsibility to
protect and improve the environment for present and future generation.
2. Principle 2.—The natural resources of the earth including air,
water, land, flora and fauna must be safeguarded for the benefit of pres-
ent and future generation through careful planning and management.
3. Principle 22.— States shall cooperate to develop the international
law relating to liability and compensation for the victims of pollution
and other environmental damage.
Thus, it can safely be concluded that the Stockholm Declaration of
1972 became the main force of the modern international environmen-
tal law. It has principles dealing with renewable and non-renewable
resources, toxic substances, sea pollution, use of science and technology,
environmental education to develop national institution to enhance qual-
ity of environment, demographic policies, international cooperation for
transboundary pollution, and nuclear weapons, etc.
Thus, if a survey is made of the international covenants, agreements or
protocols relating to environment, the number is about 870 of such doc-
uments. Some of the important international conventions are as follows:
1. Biological diversity
(a) International Convention for Protection of Birds, 1950
(b) International Plant Protection Convention, 1951
(c) Convention on Wetlands of International Importance espe-
cially as Waterfowl Habitat (Ramsar), 1971
(d) Convention for Protection of the World’s Cultural and
Natural Heritage, 1972
(e) Convention on International Trade in Endangered Species
(CITES) of Wild Fauna and Flora, 1973
(f) Agreement on Conservation of Polar Bears, 1973
(g) Convention on the Conservation of Migratory Species of
Wild Animals, 1979
(b) Non Legally Binding Authoritative Statement of Principles
for a Global Consensus on the Management, Conservation
and Sustainable Development of Types of Forests, 1982
 [CHAP.
450 ENVIRONMENTAL LAW

(i) World Charter for Nature, 1982

ands of
(j) Protocol to Amend the Convention on Wetl
International Importance especially as Waterfowl Habitat,
1982
(k) Convention on Biological Diversity (CBD), 1992
2. Deforestation
(a) International Tropical Timber Agreement, 1983
(b) International Tropical Timber Agreement, 1994
3. Desertification
(a) UN Conference on Desertification (UNCOD) Plan of Action
to Combat Desertification and General Assembly Resolution,
1977
(b) UN Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification,
Particularly in Africa, 1994
4. Marine resources
(a) International Convention for the Regulation of Whaling,
1946
(b) Agreement Concerning Interim Arrangements Relating to
Polymetallic Nodules of the Deep Sea Bed, 1982
(c) UN Convention on the Law of the Sea (UNCLOS), 1982
(d) Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels
on the High Seas, 1993
5. Antarctica and its resources
(a) The Antarctic Treaty, 1959
(b) Agreed Measures for the Conservation of Antarctic Fauna
and Flora, 1964
(c) Convention for Conservation of Antarctic Seals, 1972
(2) Convention on the Conservation of Antarctic Marine Living
Resources, 1980
(e) Convention on the Regulation of Antarctic Mineral Resource
Activities, 1988
(f) Protocol on Environmental Protection to the Antarctic
Treaty, 1991
6. Prevention of pollution
7. Transboundary pollution
(2) Convention on Long-Range Transboundary Air Pollution,
1979
(b) Protocol Concerning Cooperation in Combating Pollution in
cases of Emergency, 1981
(c) Basel Convention on the Control of Transboundary
Movement of Hazardous Wastes and their Disposal, 1989
14] INTERNATIONAL ENVIRONMENTAL LAW 451

(2) Bamako Convention on the Ban of the Import into Africa and
the Control of Transboundary Movement and Management
of Hazardous Wastes within Africa, 1991
(e) Convention on Environmental Impact Assessment in
Transboundary Context, 1991
(f) Convention on the Transboundary Effect of Industrial
Accidents, 1992
8. Marine pollution
(a) International Convention on Civil Liability for Oil Pollution
Damage, 1969
(b) Convention on Prevention of Marine Pollution by Dumping
of Wastes and Other Matter, 1972
(c) Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft, 1972
(d) International Convention for the Prevention of Pollution
from Ships, 1973
(e) Protocol Relating to the Intervention on the High Seas in
Cases of Pollution by Substances Other than Oil, 1973
(f) Convention for the Prevention of Marine Pollution from
Land-Based Sources, 1974
(g) International Convention on Oil Pollution Preparedness
Response and Cooperation, 1990
9. Ozone depletion
(a) Vienna Convention for the Protection of the Ozone Layer,
1985
(b) Protocol on Substances that Deplete the Ozone Layer
(Montreal), 1987
(c) Adjustment and Amendments to the Montreal Protocol on
Substances that Deplete the Ozone Layer, 1990
(d) Amendment to the Montreal Protocol on Substances that
Deplete the Ozone Layer (Copenhagen), 1992
10. Climatic change
(a) United Nations Framework Convention on Climate Change
(UNFCCC), 1992
(b) Kyoto Protocol to the United Nations Framework Convention
on Climate Change, 1997
Apart from the abovementioned international treaties
covering specific aspects of environmental pollution and
conservation of natural resources, there are certain basic
international documents dealing with environmental issues
in a holistic manner. They are:
(i) Declaration on the Permanent Sovereignty over Natural
Resources, 1962
 452 ENVIRONMENTAL LAW
[CHAP.

(ii) Declaration of the UN Conference on the Human

Environment (Stockholm), 1972
(iii) The Hague Declaration on the Environment, 1989
(iv) The Rio Declaration on Environment and Development,
1992 |
(v) Report of the United Nations Conference on Environment
and Development (UNCED), 1992

3. IMPORTANT CONVENTIONS/
AGREEMENTS/REPORTS

34 Stockholm Conference, 1972

\

\First international conference on human environment was held in

Stockholm, Capital of Sweden (5-16 June 1972) where more than
107 States participated. The then Prime Minister of India, Mrs Indira
Gandhi, was the first head of the State to address the conference.
At the end of the conference, 26 principles were agreed and declared
by the participating States. These principles are known as the Magna
Carta on Human Environment.” The Stockholm Declaration (1972) was
the first holistic approach to deal with the problems of environment. The
conference adopted an action plan relating to natural resources, human
settlement, human health, territorial ecosystem, environment and devel-
opment, ocean, energy, wildlife, natural disaster, transboundary pollu-
tion, nuclear energy and means of mass destruction. It also declares that
there is a need for the international law relating to liability and compen-
sation for the victims of pollution and other environmental damage.
Principles 1 and 2 have enunciated the principle of “sustainable devel-
opment”'’. Thus, it was cautioned that “now renewable resources of the
earth must be employed in a way so as to guard against the danger to the
future generation”.”” Therefore, man has a special responsibility to safe-
guard and wisely manage the heritage of wildlife and its habitat.2° It also
advocated to establish national institutions with the task of planning,

17. See, K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418, 471 and Essar Oil
Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392: AIR 2004 SC 1834.
18. Principle 1: Man has the fundamental right to freedom, equality and adequate con-
ditions of life in an environment of quality that permits a life of dignity and well
being; and he bears a solemn responsibility to protect and improve the environment
for present and future generation.
a Principle 2: The natural resources of the earth including air, water, land,
flora and
fauna must be safeguarded for the’benefit of present and future generation throug
h
careful planning and management.
2( - Principle 4: Man has a special responsibility to safeguard
——
and wisely manage the
heritage of wildlife and its habitat, which are now gravely imperilled
by a combina-
tion of adverse factors. Nature conservation including wildlife must
therefore receive
importance in planning for economic development.
14] INTERNATIONAL ENVIRONMENTAL LAW 453

managing or controlling the environmental resources with a view to

enhance the environmental quality.
The United Nations Environment Programme (UNEP) was also cre-
ated by the UN General Assembly on 15 December 1972 to promote
environmental law and address major environmental issues.

3.2 Our common future

The World Commission on Environment and Development was estab-
lished by the UN General Assembly in 1983 for “a global agenda for
change”. Gro Harlem Brundtland, the then Prime Minister of Norway,
was appointed as Chairperson of the commission to “re-examine the
critical environmental and developmental problems on the Planet and
to formulate realistic proposals to solve them and to ensure that human
progress is sustained through development without bankrupting the
resources of future generations”. The report was nted by the com-
mission in 1987 which is known as Our Common Future.
been divided into three parts: 1) common concern, 2) common challenges,
and 3) common endeavours. The report advocated for sustainable devel-
opment*’ which aims to promote harmony among human beings and
between humanity and nature. In Part IL)common challenges, problem-
atic issues on population, food security, species and/ecosystem,, energy,
industry and urban challenges have been discussed. Part III emphasises
on common action to deal with the common challenges and provides
various proposals for institutional and legal change. The commission
recommended that “human laws must be formulated to keep human
activities in harmony with the unchanging and universal laws of nature”.
At the end, it has provided a list of 22 principles— “legal principles”
for environmental protection and sustainable development. Principle
1 declares that “all human beings have the fundamental right to an
environment adequate for their health and well-being”, principle of
“inter-generational equity” has been enunciated under Principle 2.7
Principles (9 to 20) deal with the principles, rights, and obligations con-
cerning transboundary natural resources and environmental interfer-
ences. These include principles of “strict liability” and compensation for
substantial transboundary harm. Principle 21 provides for State responsi-
bility for breach of an international obligation regarding the environment
and payment of compensation forthe harm caused. Lastly, it declares

21. “Sustainable Development means development that meets the need of the present
without compromising the ability of future generation to meet their own needs”, Our
Common Future (1987) 43.
22. Principle 2: State shall conserve and use the environment and natural resources for
the benefit of present and future generations.
454. ENVIRONMENTAL LAW [c HAP.

means such
that States shall settle environmental disputes by peaceful
lement.*’
as mutual agreement, conciliation, arbitration and judicial sett
ed and
Looking to its importance, the Supreme Court has widely quot
referred it. In K. Guruprasad Rao v. State of Karnataka™, the court
observed that it “stimulated debate on development policies and prac-
tices in developing and industrialised countries alike and called for an
integration of our understanding of the environment and development
into practical measures of action.”

3.3 Basel Convention

The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes was held in 1989. The main objective of this conven-
tion is to reduce the generation and movement of hazardous and other
wastes and their proper disposal in their State of origin, with regards to
the protection of health of the people and the environment. It consists of
29 articles.
It has many principles to minimise the level of generation of hazardous
waste from their sources, to prohibit the export of hazardous or other
wastes to parties that have prohibited its import or not given written
consent, and to ensure availability of adequate disposal facilities and no
import and export from non-party. Thus, the main object of the conven-
tion is “to ensure reduced transboundary movement of hazardous and
other wastes, consistent with their environmentally sound and efficient
management, and this being conducted in a manner which will protect
human health and the environment against the adverse effects which may
result from such movement”.?> The convention also provided that “each
party shall take appropriate legal, administrative and other measures to
implement and enforce the provisions of this convention, including meas-
ures to prevent and punish conduct which is in contravention of this con-
vention”.*° Article 3(1) clearly declared that each party State shall adopt
this convention in their national/domestic laws and appoint competent
authority/authorities to implement the provisions of the convention.”’
In a recently decided case, Research Foundation for Science v. Union
of India**, the Supreme Court has directed the Union Government to
bring the Hazardous Wastes (Management and Handling) Rules in line

23. Principle 22.

24. (2013) 8 SCC 418, 472. Per Hon’ble G.S. Singhvi J.
25. Art. 4 (1)(d).
26. Art. 4 (4); also see, Art. 9(5).
Dy, Art. 53 Art. 9(5) provides “each party shall introduce appropriate national/domestic
legislation to prevent and punish illegal traffic...”.
28. (2012) 7 SCC 769: AIR 2012 SC 2627; Research Foundation for Science v. Union of
India, (2012) 7 SCC 764: AIR 2012 SC 2973.
14| INTERNATIONAL ENVIRONMENTAL LAW 455

with the Basel Convention. Permission to import the toxic waste must
also be as per the norms of Basel Convention.
The convention also has provisions for agreements for transboundary
movement of hazardous wastes [Art. 11], and Article 12 provides for
adopting appropriate rules/procedure in the field of liability and compen-
sation for damage resulting from transboundary movement and disposal
of hazardous and other wastes.
Some other conventions related to transboundary movement are as
follows:
1. Convention on the Transboundary Effects of Industrial Accidents,
1992
2. Convention on Environmental Impact Assessment in Transboundary
Context, 1991
3. Convention on Long Range Transboundary Air Pollution, 1979

3.4 UN Convention on the Law of the Sea, 1982?°

The object of the convention is to establish legal order for seas, and pro-
mote 1) uses of seas and oceans, 2) the equitable and efficient utilisation
of their resources, 3) the conservation of their living resources and their
protection, and 4) preservation of the marine environment.
The convention aims to prevent, control, reduce and abate the marine
pollution from
1. land-based resources including rivers, estuaries, pipelines and out-
fall structures, etc.; [Art. 207]
2. sea bed activities; [Art. 208]
3. dumping (it includes deliberate disposal of wastes or other matter
from vessels, aircrafts, platforms or other man-made structures;
[Art. 210]
4. pollution from vessels; [Art. 211] and
5. pollution from or through air. [Art. 21]
The States are under an obligation to adopt laws and regulations to
prevent, reduce and control marine pollution through abovementioned
sources and to establish global and regional rules, standards and rec-
ommend practices and procedures to prevent, reduce and control such
pollution.
The States are liable according to international obligation under the
convention and shall pay compensation and other adequate relief in
respect of damage caused by marine pollution. [Art. 235]

29. Held at Montego, on 10-12-1982. It is a voluminous convention, have 15 chapters and

more than 300 articles.
456 ENVIRONMENTAL LAW [CHAP.

“Sovereign immunity” has also been provided under Article 236 for
warship, naval auxiliary, vessel or aircraft owned or operated by a State
and used for governmental and non-commercial service.
The convention also has provisions for development and transfer of
technology and settlement of disputes.

3.5 Vienna Convention on Protection of Ozone Layer, 1985 and

Montreal Protocol, 1987°°
To protect the ozone layer, which is a protective shield around earth
protecting it from ultraviolet (B) rays, the Vienna Convention was signed
with the objective “to further develop scientific knowledge of ozone layer
and check the possible adverse effects resulting from its modification”.
The main object of the convention is that the States shall adopt
appropriate legislative or administrative measures and cooperate to
control, limit, reduce and prevent human activities under their juris-
diction... which have adverse effect on the ozone layer. Further, the
Member States shall exchange the legal, scientific and technical informa-
tion among themselves and provide help in these fields.
Carbon substances (carbon monoxide, carbon dioxide, methane),
nitrogen substances (nitrous oxide, nitrogen oxides), chlorine substances
(CEC. GE, Cl, CFCL,, CFC, ), fully halogenated alkanes, partially
halogenated alkanes (CHCl, CFC. CH,-CCl, CFC,), bromine sub-
stances (anthropogenic CF Br), hydrogen substances (hydrogen H,)
source —anthropogenic or natural have been identified as the main
chemical substances with the potential to modify chemical and physical
properties of the ozone layer.

3.6 Convention on International Trade in Endangered Species of

Wild Fauna and Flora, 19737!
The main objective of the convention is “to recognise the ever growing
value of wild flora and fauna from aesthetic, scientific, cultural, recrea-
tional and economic point of view” and that “international cooperation
is essential for the protection of certain species of wild flora and fauna
against over exploitation through international trade”. The Supreme
Court of India has also observed that the convention “in its Preamble
also indicates that fauna and flora are irreplaceable part of the natural
environment of the earth and international cooperation is essential for

30. It hor into force on 22-9-1988. The convention consis

ts of 21 articles and one
schedule.
31. It nity into force on 1-7-1975 and was signed at
Washington. It consists of 25
articles.
14] INTERNATIONAL ENVIRONMENTAL LAW 457

the protection of certain species against over exploitation and interna-

tional trade.”*? ;
The convention has divided such species into three categories
(Appendices I, II and III). Appendix I includes all species threatened with
extinction (endangered); Appendix II includes species not necessarily
threatened with extinction, but which may become extinct if trade in
such species is not subjected to strict regulation; Appendix III includes
such species which are identified by the party nations and need coopera-
tion in control of trade by other party nations.
Export, import and re-export of these species shall be with a prior
“permit” obtained for that purpose. Without permit, it will not be per-
mitted. Each consignment shall require a separate permit. Such permit
will generally be granted where the “image authority” and the “scientific
authority” satisfy themselves that such import or export shall not be
detrimental to the survival of that species and would involve minimal
risk of injury, damage to health or cruel treatment, [Arts. III-V] and that
specimen shall not be used for commercial purpose.
The convention also calls upon the States to make domestic laws for
restricting or prohibiting trade, taking possession or transport of spec-
imens of species and penalties for the contravention of such provisions.
[Art. 14]
The convention has also prohibited the trade between non-parties
unless such non-party substantially conforms to the documentation
requirement of the convention. India is a signatory to this convention.

3.7. Bonn Convention on the Conservation of Migratory Species

of Wild Animals, 1979%°
The convention recognised that wild animals are an irreplaceable part of
the earth’s natural system and it is an obligation of mankind to ensure
that this legacy is conserved for future generations and, where utilised, is
used wisely. Since wild animals migrate from one State to another, it is
the duty of the States to protect them in whose territory they are found.
Thus, the convention aims to protect the migratory species, habitats
of migratory species so that they do not become endangered. The party
States are required to cooperate and to take appropriate and necessary
steps to conserve such species, their habitat and support research in this
field.
Appendix I has provided a list of endangered species which includes
“mammalia” and “reptilia” families. Appendix II includes all migratory

32. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362, 375. |
33. The convention came into force on 1-11-1983. The convention consists of 20 articles
and 2 appendices.
458 ENVIRONMENTAL LAW [CHA P.

species which have an unfavourable conservation status and which

require international agreement and protection for their conservation
and management. |
The convention expects “range States” to conserve and, if need be,
restore the habits of the species, prevent, remove, compensate for or min-
imise the adverse effects of activities that seriously impede and prevent
the migration of species, and reduce or control factors that endanger the
species. qe
The taking of endangered species is strictly prohibited unless it is for
1) scientific purpose, or 2) to enhance the propagation or survival of the
affected species, or 3) to accommodate the needs of traditional! subsist-
ence users, or 4) if extraordinary circumstances so require. [Art. III(5)|
Therefore, the “range State” are expected to enter into agreements for
the benefit of species. Article V of the Convention has provided detailed
guidelines for such agreements; for example, Guideline 4 provides that
each agreement should identify route of the migratory species, establish
appropriate machinery to assist in carrying out the aims of the agree-
ment, monitor its effectiveness and prepare report of the same and also
to provide procedure for the settlement of disputes among the parties
to the agreement. The periodic review of the conservation status is also
necessary.

3.8 Convention on Wetlands of International Importance, 1971

and 1982 (Ramsar)
The main objective of this convention is to conserve and wise use of the
wetlands* and their flora and fauna by combining far-sighted national
policies with coordinated international action. It also recognises that
wetlands constitute a resource of great economic, cultural, scientific and
recreational value, the loss of which would be irreparable and that it is
“a cegulatory of water regimes and as habitats supporting characteristic
flora and fauna, especially waterfowl”.
The convention provides that the contracting parties shall
1. designate such lands as wetlands with precise boundaries which
have international significance in terms of ecology, botany, limnol-
ogy or hydrology. [Art. 2]
2. formulate and implement planning to promote the conservation of
the wetlands and their wise use. [Art. 3]
3. establish “nature reserves” on wetland and to compensate for any
loss of wetland resources, increase waterfow! population through

34. Wetland means marsh, fen, peatland or water whether

natural or artificial with
water, static or flowing, fresh, brackish or salty, including
areas of marine water, the
depth of which at low tide does not exceed six meters.
[Art. I(x)]
14| INTERNATIONAL ENVIRONMENTAL LAW 459

management, promote training of personnel competent in the wet-

land research management and wardening. [Art. 4]
4. consult each other about implementing obligations arising out of
the Convention especially when wetland extends over territories of
more than one contracting party. [Art. 5|
Vembanad Lake in the State of Kerala was declared as a “Ramsar Site”
in the year 2002 in response to Article 2.1 of this Convention of 1971.35
Thus, the wetlands included in the lists acquire a new status at the
national and international level.

3.9 World Charter for Nature, 1982

The charter was adopted by the UN General Assembly. It consists of 24
principles.
The charter recognises that “Mankind is a part of nature... and the
civilization is rooted in nature, which has shaped human culture and
influenced all artistic and scientific achievement, and living in harmony
with nature gives man the best opportunities for the development of his
creativity, and for rest and recreation”. Therefore, “man must acquire the
knowledge to maintain and enhance his ability to use natural resources
in manner which ensures the preservation of the species and ecosystem
for the benefit of the present and future generation”. With this the char-
ter has pronounced 24 principles to conserve the natural resources.
As general principle it has been provided that “nature shall be respected
and its essential process shall not be impaired” and that “nature shall be
secured against degradation caused by warfare or other hostile activi-
ties”. Genetic viability, population level of all forms and their habitats,
all areas of earth, both land and sea, ecosystems and organisms should
be protected and conserved.
Various functions have been provided to be performed by the States
(from Principles 6 to 13). Such functions include planning and implemen-
tation of the social and economic activities with due care for conserva-
tion of nature; formulating long term plans for economic development,
population growth and improvement of standards of living; using the
natural resources in a restraint manner and prohibiting their wast-
age, maintaining the productivity of soil, reusing and recycling natural
resources; exploiting non-renewable resources with restraint; controlling
activities which might have an impact on nature and usage of best avail-
able technologies that minimise significant risk to nature; and avoiding
the discharge of pollutants into natural resources with special precau-
tions to prevent the discharge of radioactive or toxic wastes.

35. Mentioned in Vaamika Island (Green Lagoon Resort) v. Union of India, (2013) 8
SCC 760.
460 ENVIRONMENTAL LAW [CHAP.

As implementing measures, the Charter provides** that the States shall

adopt legal measures, disseminate environmental education, formulate
and encourage scientific research, monitor and evaluate conservation
policies and methods, implement the applicable international legal provi-
sions, ensure participation of people in formulation of decisions concern-
ing environment and that “each person has a duty to act individually” in
association with others or through participation in political process to
achieve the objectives and requirements of the charter.

3.10 Nairobi Convention, 1985

This convention offers a framework and coordinates the efforts of the
countries of the region to plan and develop plans and programmes that
strengthen their capacity to protect, manage and develop their coastal
and marine environment sustainably. It aims to restrain any further
degradation of the marine environment and to reverse degradation and
destruction of critical habitat. This convention was passed for the protec-
tion, management and development of the marine and coastal environ-
ment of the East-African region. It was also mentioned that the special
hydrographic and ecological characteristics of the regions require special
care and responsible management. At that time there was no such con-
vention on marine pollution that met the requirements of East-African
region.
The convention has 31 articles which deal with various aspects includ-
ing provisions on general obligation of the contracting parties, pollu-
tion from ship, pollution caused by dumping, pollution from land based
sources and from seabed activities, airborne pollution, specially pro-
tected areas, environmental damage from engineering activities, envi-
ronmental impact assessment, liability and compensation, institutional
arrangements, adoption of protocols, etc.

3.11 Earth Summit: The Rio Declaration on Environment and

Development, 199237
The Rio de Janeiro Conference is known as “Earth Summit”. It has pro-
claimed 27 principles. It reaffirmed the Stockholm Declaration of 1972.
The main objective of the conference was to establish new and equitable
global partnership through creation of new levels of cooperation among
States, key sectors of societies and people... international agreements
which respect the interest of all and protect the integrity of global envi-
ronment and development system, recognising the integral and interde-
pendent nature of the earth, our home.

36. From Principles 14-24.

37. Held from 3-6-1992 to 14-6-1992.
14| INTERNATIONAL ENVIRONMENTAL LAW 461

The various principles of the declaration emphasise on “sustainable

development”*® to equitably meet developmental and environmental
needs of present and future generations*?; eradication of poverty pro-
grammes*; reduction and elimination of unsustainable patterns of pro-
duction, and consumption and promotion of demographic policies“;
public participation in decision-making*”; national environment legis-
lation; developing national law regarding liability and compensation*®
for the victims of pollution and other environmental damage; precau-
tionary approach to protect environment; promoting the internalisation
of environment costs; undertaking environmental impact assessment for
proposed activities which are likely to have a significant adverse impact;
and role of women in environmental management and development.
Article 22 also provided that good use of the knowledge of indigenous
people must also be made and that knowledge be protected. It also pro-
nounces that “peace, development and environmental protection are
interdependent and indivisible”. Therefore, even armed conflicts should
not harm the natural environment.

3.11.1 Agenda 21
Agenda 21 was, as one of the instruments, adopted at the UN Conference
on Environment and Development held at Rio de Janeiro in 1992.
It is a non-binding instrument and it has provided certain strategies
and other detailed programmes to contain environmental degradation
and to promote environmentally sound and sustainable development.
It also advocates for global partnership among the world government,
masses and non-governmental, voluntary agencies for abovementioned
purpose.
Agenda 21 is divided into four parts: 1) socio-economic dimensions
(habitat, health, demography, consumption and production pattern, etc.);
2) conservation and resource management (atmosphere, forest, water,
waste, etc.); 3) strengthening the role of NGO’s and other social action
groups such as trade unions, women organisations, etc.; and 4) measures
of implementation (finances, institutional machinery, etc.).
The agenda has various provisions for the management of tox-
ic-chemical hazardous wastes, solid and sewage wastes, radioactive
wastes and biotechnology. Further, other provisions for the protection of
oceans, seas, coastal areas, quality supply of fresh water resources and

38. Art. 1.
39. Principle 3.
40. Principle 5.
41. Principle 8.
42. Principle ro.
43. Principle 13.
 ENVIRONMENTAL LAW [CHAP.
462

atmosphere has been provided. Some of the provisions deal with man-
agement of land resources, deforestation, drought, sustainable develop-
ment of mountains, rural agricultural areas.

3.12 UN Framework Convention on Climate Change, 1992”

One of the conventions adopted at “Earth Summit” at Rio de Janeiro in
1992 was the Convention on Climate Change.
The prime objective of the convention is to “stabilise the greenhouse®
concentration in the atmosphere at a level that would prevent dangerous
anthropogenic interference with climate system”. The concentration of
greenhouse gases (GHGs) results in additional warming of the earth’s
surface and atmosphere, but it may adversely affect natural ecosystem
and mankind. It also referred to the Vienna Convention for Protection
of the Ozone Layer, 1985 and Montreal Protocol on Substances that
Deplete the Ozone Layer, 1987.
The convention has also provided that 1) each State party shall make
national policies and take corresponding measures on the mitigation of
climate change by limiting its anthropogenic emissions of GHGs, and
2) protecting and enhancing its greenhouse gas sinks and reservoirs.
The Member Countries are under an obligation to promote and coop-
erate in scientific, technological, socio-economic and other research,
systematic observation and development of data archives related to cli-
mate system and exchange them with other countries. [Art. 5] Further,
the member parties shall promote and facilitate at national level with
national laws and regulation to implement educational and public aware-
ness programmes on climate change and train scientists, technocrats and
managerial personnels in this field. Public participation and access to
information shall also be encouraged by the Member States [Art. 6].
The Kyoto Protocol of 1997 is a part of this convention as Article 17(r)
provided that the conference of the parties may adopt protocols to the
convention.

3.13 Convention on Biological Diversity, 1992%°

It is one of the important agreements made at Earth Summit at Rio de
Janeiro (1992) which adopted a holistic approach to protect biological

44. The convention consists of 27 articles.

45. Greenhouse gases means those gaseous constituents of the atmosphere, both natural
and anthropogenic, that absorb and re-emit infrared radiation. [Art. 1(5)].
46. It consists of 42 articles. “Biological diversity” means the variability among
living
organisms from all sources including inter alia, terrestrial, marine and other
aquatic
ecosystems and ecological complexes of which they are part; this includes
diversity
within species, between species and of ecosystem. [Art. 2].
14| INTERNATIONAL ENVIRONMENTAL LAW 463

diversity as it is a common concern of mankind and important for evo-

lution and, for maintaining the life-sustaining system of the biosphere.
The CBD has given legitimacy to the cultural rights of indigenous
people and has also highlighted the necessity to preserve and maintain
knowledge, innovation and practice of local communities relevant for
conservation and sustainable use of biodiversity.*”
The convention aims to develop national strategies, plans and pro-
grammes for conservation and sustainable use of biodiversity. [Art. 6]
Article 8 provides for “in-situ conservation” strategy and to establish
protected area/areas where special measures need to be taken to con-
serve biological diversity. Similarly, Article 9 provides for “ex-situ
conservation” measures which include measures to “establish and main-
tain facilities for ex-situ conservation and research on plants, animals
and micro-organisms, preferably in the country of origin of genetic
resources”. It also has provisions “to encourage customary use of biolog-
ical resources in accordance with traditional cultural practices” that are
compatible with conservation or sustainable use requirements.**
There are also provisions for “incentive measures”, research and train-
ing, public education and awareness, and to introduce “impact assess-
ment” of projects which are likely to have significant adverse effects on
biological diversity with a view to avoid or minimise such effects and
to allow public participation in such procedure.’ Article 16 also pro-
vides for access to and transfer of technology among the nations; and
Article 19 makes it obligatory to provide and advance priority access or
a fair and equitable basis of the results and benefits arising from biotech-
nology based upon genetic resources....It also advocates to encourage
and develop, in accordance with national legislation and policies, use of
technologies, including indigenous and traditional technologies.*°
Under Article 20, it has become obligatory for developed countries to
provide new and additional “financial resources” “to enable developing
country parties to meet the agreed full incremental costs to them for
implementing measures ... to fulfil the obligations of this convention and
to benefit from its provisions...”.
It has been rightly observed that CBD “mandates the contracting par-
ties to develop and maintain necessary legislation for protection and reg-
ulation of threatened species and also regulate trade therein.” Thus, the
States are required to formulate policies, legislation and appropriate laws
to curb practices that result in extinction of species.”!

47. Observation of the Supreme Court in K. Guruprasad Rao v. State of Karnataka,

(2013) 8 SCC 418, 488.
48. Art. ro(c).
49. Art. 14.
50. Art. 18(4).
51. T.N. Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362, 375.
464 ENVIRONMENTAL LAW [CHAP.

In T.N. Godavarman Thirumulpad v. Union of India**, the Supreme

Court has explained that in the Convention on Biodiversity, 1992 and
Convention on International Trade in Endangered Species of Wild Fauna
and Flora, 1973, there is a shift and emphasis on ecological rights rather
than on environmental rights. Thus this shift is from anthropocentric
approach to ecocentric approach. The Stockholm Declaration and Rio
Declaration asserted that “humans are at the center of concern” high-
lighting the anthropocentric approach.

3.14 Cartagena Protocol on Biosafety, 2000

The Cartagena Protocol on Biosafety, 2000°% is supplement to the
Convention on Biological Diversity of 1992. The main objective of the
protocol is to ensure an adequate level of protection in the field of the
safe transfer, handling and use of “living modified organisms resulting
from modern biotechnology” that may have adverse effects on the con-
servation and sustainable use of biological diversity, taking also into
account risks to human health, and specifically focusing on transbound-
ary movements®*. It is based on the “precautionary approach”, contained
in Principle 15 of the Rio Declaration on Environment and Development,
1992. It seeks to protect biological diversity from the potential risks
posed by living modified organisms resulting from modern biotechnol-
ogy®®, especially on the transboundary movement of modern biotechnol-
ogy created living modified organisms. The protocol makes clear that
products from new technologies must be based on the precautionary
principle and allow developing nations to balance public health against
economic benefits. The protocol has been hailed as a major instrument in
ensuring the conservation and sustainable use of biological diversity and
protecting human health. The signatories to the protocol are required to
take the necessary legal, administrative and other steps in order to meet
their obligations. The protocol procedures and mechanisms to be applied
in the transboundary movements of “Living Modified Organisms”

$2. (2012) 4 SCC 362, 373; this case was relating to “Red Sandalwood —an
” endangered
species and to declare it “specific plant” within the meaning of S. 2(27) and to be
included in Schedule VI, Wildlife (Protection) Act, 1972,
53. The protocol entered into force on 11-9-2003.
54. Art. 1, Protocol, 2000.
5S. Principle 15 of the Rio Declaration on Environment and Development,
the precau-
tionary approach “... where there is a threat... lack of full scientific certain
ty should
not be used as a reason for postponing measures to avoid or minimize
such a threat”.
56. Modern technology means “the application of in vitro nuclei
c acid techniques, or
fusion of cells beyond the taxonomic family, that overcome natura
l physiological
reproductive or recombination barriers and are not techniques used
in traditional
breeding and selection”.
14| INTERNATIONAL ENVIRONMENTAL LAW 465

(LMOs)°’ are living organisms that possesses a novel combination of

genetic material obtained through the use of modern biotechnology
(genetic modification).
Thus, the protocol applies to the transboundary movement, transit,
handling and use of all living modified organisms that may have adverse
effects on the conservation and sustainable use of biological diversity,
taking also into account risks to human health and would not apply to
the transboundary movement of “living modified organisms” which are
pharmaceuticals for humans that are addressed by other relevant inter-
national agreements or organisations. [Art. 5]
The protocol*’ contains the provisions for advance informed agreement
procedure, procedure for living modified organisms intended for direct
use as food or feed or for processing, risk assessment and management,
handling, transport, packaging and identification, information-sharing
and the biosafety clearing-house, capacity building, socio-economic
considerations, liability and redress for damages, compliance and public
awareness and participation.

3.15 Nagoya Protocol on Access and Benefit Sharing, 2010”

The protocol is also a supplementary agreement to the CBD of 1992
and relates to one of the three objectives of the CBD, i.e. “access and
benefit sharing of genetic resources”. This protocol is an international
agreement which aims at sharing the benefits arising from the utilisation
of genetic resources in a fair and equitable way by appropriate access to
genetic resources and by appropriate transfer of relevant technologies,
taking into account all rights over those resources and to technologies.
It consists of 36 articles and one annexure. It aims “to the conservation
of biological diversity and the sustainable use of its components”. It pro-
vides 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 utilisation of genetic resources”. The Nagoya
Protocol also covers traditional knowledge (TK) associated with genetic
resources that are covered by the CBD and the benefits arising from its

57. Any living organism that possesses a novel combination of genetic material obtained
through the use of modern biotechnology, and living organism means any biological
entity capable of transferring or replicating genetic material, including sterile organ-
isms, viruses and viroids.
58. It consists of 40 articles and 3 annexures.
59. It was adopted by the conference of the parties to the convention on biological diver-
sity at its roth meeting on 29-10-2010 in Nagoya, Japan. The Nagoya Protocol will
be open for signature by Parties to the Convention from 2-2-2011 until 1-2-2012 at
the UN Headquarters, New York.
The Union Cabinet has approved the signing of the Nagoya Protocol on Access
and Benefit Sharing (ABS) by India on 19-4-2011 and signed on 11-5-201T.
466 ENVIRONMENTAL LAW [CHAP.

utilisation. Contracting parties are to take measures to ensure these com-

munities’ prior informed consent, and fair and equitable benefit-sharing,
keeping in mind community laws and procedures as well as customary
use and exchange. A range of tools and mechanism have been provided
for its effective implementation which include establishing national focal
points (NFPs) and competent national authorities (CNAs), developing
domestic ABS legislation to implement the Nagoya Protocol, developing
in-country research capability and institutions, awareness-raising, tech-
nology transfer and financial support for capacity-building and develop-
ment initiatives through the Nagoya Protocol’s financial mechanism, the
Global Environment Facility (GEF). There are three core obligations of
the contracting parties —access obligations, benefit-sharing and compli-
ance obligations, under the protocol.

3.16 International Year of Biodiversity

The UN General Assembly®® declared 2010 as the International Year of
Biodiversity (IYB). This year also coincides with the zoro biodiversity tar-
get adopted by the parties to the CBD and by Heads of State and govern-
ment at the World Summit for Sustainable Development in Johannesburg
in 2002. The main goals of the [YB were to enhance the public awareness
about the importance of and threat to biodiversity through activities and
events, promote innovative solutions to reduce the threat to biodiversity
and to encourage the individuals, organisations and governments to halt
the loss of biodiversity.
Thus, the world was invited to take action in 2010 to safeguard
the variety of life on earth and make it on top of its political agenda.
Number of activities were also undertaken in India including that the
Indian Government issued two commemorative stamps on biodiversity
on World Environment Day to enhance public awareness of the impo ~-
tance of conserving biodiversity.

3.17 International Decade of Biodiversity

As a sequel to IYB, the UN has declared 2011 to 2020 as “International
Decade of Biodiversity” (IDB). This decade will highlight “the value of
biodiversity to all our lives” and to call for a renewed effort to safeguard
the variety of life and celebrate life on earth. Thus, it is an international
commitment agreement to protect our natural resources for the future
through a strategic plan for biodiversity. The main emphasis is on the
protection of rarest of rare species of flora and fauna. The main motto of
60. Vide its Resolution 61/203 of 2006.
61. The UN agreed to a Decade on Biodiversity from 2011-2020 at the global
biodiver-
sity meeting, called the Nagoya COP 10, held in Japan in October 2010.
14| INTERNATIONAL ENVIRONMENTAL LAW 467

the strategic plan for biodiversity 2011-2020 and the Aichi Biodiversity
Targets is “living in harmony with nature”.
As a part of IDB, the year 2011 has been declared as “International
Year of Forests”. Parties to Nagoya Conference of 2010 also developed
strategic plan for this decade “to ensure that life on earth will persist
in all its diversity and complexity, for the benefit of present and future
generations”. The IDB Declaration® includes the rationale of the plan,
vision, strategic goals and the Aichi Biodiversity Targets®, provisions for
implementation, monitoring, review and evaluation and support mecha-
nisms. It also invited the attention of Member States to take note of the
United Nations Declaration on the Rights of Indigenous Peoples®™ and of
the other biodiversity related conventions®’.

3.18 World Summit on Sustainable Development, 2002

This summit, also known as “Earth Summit”, was held in Johannesburg,
South Africa, from 26 August to 4 September 2002 by the UNO. It was
in sequence to the Stockholm Conference on Human Environment of
1972.°° The summit attracted the world’s attention towards meeting
their difficult challenges like improving people’s lives and conserving
natural resources, with ever-increasing demands for food, water, shelter,
sanitation, energy, health services and economic security. The summit
evaluated the progress made after Rio de Janeiro Conference of 1992 and
the implementation of Agenda 21. It mainly focused on five key points:
1) water and sanitation, 2) energy, 3) human health, 4) agricultural pro-
ductivity, and 5) biodiversity and ecosystem management. The summit
called on all countries to take immediate steps to formulate national
sustainable development strategies and to initiate implementation efforts
by 2005. The summit concluded with the following resolutions:
1. The establishment of a “solidarity fund” to wipe out poverty.
However, developed nations were urged to dedicate 0.7 per cent of
their national income to this cause.
2. To halve, by 2015, the proportion of the world’s people living on less
than a dollar a day. This is a reaffirmation of a “UN Millennium
Summit Goals of 2000”.

62. Known as COP to Decision X/2. Strategic Plan for Biodiversity 2011-2020.
63. It has 20 headline targets for 2015 or 2020 (the “Aichi Biodiversity Targets”).
64. General Assembly Resolution 61/295 of 13-9-2007.
65. Like the Ramsar Convention on Wetlands, the World Heritage Convention, the
Convention on International Trade in Endangered Species of Wild Fauna and Flora,
the Convention on the Conservation of Migratory Species and the International
Treaty on Plant Genetic Resources.
66. In that conference it was resolved that after every ten years, the conference will be
held to review the human environment.
 ENVIRONMENTAL LAW [CHAP.
468
clean drink-
3. To cut by half by 2015, the number of people who lack
ing water and basic sanitation. ¥
gy .
4. Substantially increase the global share of “renewable ener
animals
5. Cut significantly by 2010 the rate at which rare plants and
are becoming extinct.
6. Restore (where possible) depleted fish stocks by 2015.
Substantial cut in the number of people suffering from hunger.
—. To use and produce chemicals by 2020 in ways that do not lead to
significant adverse effects on human health and the environment.
9. To achieve by 2010 a significant reduction in the current rate of loss
of biological diversity.
It was decided that the UN Commission on Sustainable Development
shall play an active role in the implementation of the resolutions and help
the States to accomplish these objectives.

3.18.1 Johannesburg Declaration on Sustainable Development”

The declaration is a commitment of the world States for sustainable
development. “We commit ourselves to building a humane, equitable
and caring global society, cognizant of the need for human dignity for
all.”68 It gave new impetus to global action to fight poverty and protect
the environment. Most significant aspect, the establishment of a “world
solidarity fund” for the eradication of poverty, was a positive step for-
ward. Other key initiatives were health, water and sanitation, energy,
agriculture, biodiversity and ecosystem management, corporate respon-
sibility, sustainable development of small island developing States, and
institutional framework for sustainable development.
In its political agenda it was declared that “we assume a collective
responsibility to advance and strengthen the interdependent and mutually
reinforcing pillars of sustainable development— economic development,
social development and environmental protection—at local, national,
regional and global levels”. Therefore, poverty eradication, changing
consumption and production patterns, and protecting and managing the
natural resource base for economic and social development are objectives
and essential requirements for sustainable development.

3.19 Kyoto Protocol, 1997°

Signatories to this protocol were the parties to the Convention on
Climate Change (1992). The main aims of the protocol are to protect
and enhance the sinks and reservoirs of GHGs (not controlled by the

67. It consists of 37 principles. It was adopted on 4-9-2002.

68. Principle 2.
69. The protocol consists of 27 articles and 1 annexure.
14] INTERNATIONAL ENVIRONMENTAL LAW 469

Montreal Protocol); promote afforestation and reforestation; promotion,

research, development and increased use of new and renewable forms of
energy; and limit or reduce emission of GHGs including methane.
Article 3 of the protocol provides that Member Nations have to reduce
the emission of GHGs by at least five per cent, below 1990 levels in the
commitment period of 2008 to 2012.
It also envisages international cooperations in the field of transferor
access to environmentally sound technology, know-how, practices and
processes pertinent to climate change. Such cooperation includes imple-
mentation of environment education programmes, training programmes
and public awareness programmes.
Annexure A” of the protocol has provided a list of GHGs and source
categories such as energy, fugitive emission from fuel, industrial pro-
cesses, solvent and other product use (agricultural and water).

3.19.1 Clean development mechanism

It is one of the three mechanism developed by Kyoto Protocol to acquire
greenhouse gas reduction credits.’' The Clean Development Mechanism
(CDM) is one of the “flexibility” mechanisms defined in the Kyoto
Protocol.” It intends to meet two objectives: 1) to assist parties not
included in Annex I” in achieving sustainable development and in con-
tributing to the ultimate objective of the United Nations Framework
Convention on Climate Change (UNFCCC), which aims to prevent
dangerous climate change; and 2) to assist parties included in Annex I
in achieving compliance with their quantified emission limitation and
reduction commitments (GHG emission caps). Most of these reductions
are through renewable energy, energy efficiency, and fuel switching.
An industrialised/developed country that wishes to get credits from
a CDM project must obtain the consent of the developing country host-
ing the project that the project will contribute to sustainable develop-
ment. The projects in developing countries using methodologies must be
approved by the CDM Executive Board (EB). If a project is registered and
implemented, the EB issues credits called certified emission reductions
(CERs),; commonly known as carbon credits, where each unit is equiv-
alent to the reduction of one metric ton of CO,e, for example, CO, or
its equivalent, to project participants based on the monitored difference
between the baseline and the actual emissions, verified by the DOE.

70. Viz. carbon dioxide (CO,), methane (CH,), nitrogen dioxide (NO,), hydrofluorocar-
bons (HFCs), perfluorocarbons (PFCs), sulphur hexafluoride (SF).
71. Other two are 1) joint implementation, 2) international emission trading.
72. It is defined in Art. 12 of the protocol.
73. “Annex I” parties are those countries that are listed in Annex I of the treaty, and are
the industrialised countries.
470 ENVIRONMENTAL LAW [c HAP.

pment in devel-
The purpose of the CDM is to promote clean develo
loping countries
oping countries. The economic basis for including deve
ght to be less
in efforts to reduce emissions is that emission cuts are thou
The CDM
expensive in developing countries than developed countries.
in effect.
gained momentum after 2005 when the Kyoto Protocol came
on
Thus, it aims at to improve the cost-effectiveness of GHGs mitigati
policies in developed countries, encourages transfers of clean and less
polluting technologies to developing countries, and supports to reduce
“leakage” (carbon leakage) of emissions from developed to developing
countries.

3.19.2 Carbon credits

The concept of carbon credits came into existence as a result of increas-
ing awareness to control and reduce the pollution. Carbon credits were
one of the outcomes of the Kyoto Protocol, an international agreement
between 169 countries. It is to be noted that the Kyoto Protocol created
legally binding emission targets for developing nations.
The carbon credit system was introduced by the Kyoto Protocol. Its
goal is to stop the increase of carbon dioxide emissions. It has been
defined as
A carbon credit is a generic term for any tradable certificate or permit rep-
resenting the right to emit one tonne of carbon dioxide or the mass of another
greenhouse gas with a carbon dioxide equivalent (tCO2e) equivalent to one
tonne of carbon dioxide; or
a certificate showing that a government or company has paid to have a
certain amount of carbon dioxide removed from the environment.”
Carbon credits and its carbon markets are a component of attempt of
national and international attempts to mitigate the growth in concen-
trations of GHGs. One carbon credit is equal to one metric tons of car-
bon dioxide, or in some markets, carbon dioxide equivalent gases. Main
purpose of this system is to reduce emission of GHGs and develop clean
development mechanism.”
India is under the third category of signatories to UNFCCC. India
signed and ratified the protocol in August 2002 and has emerged as
a world leader in reduction of GHGs by adopting CDMs in the past
few years. India has various projects regarding that and has bagged the

74. “Carbon Credit” in Collins English Dictionary-Complete and Unabridged (10th

Edn., William Collins Sons & Co. Ltd/Harper Collins Publishers 2009). See also,
“Carbon Credit” in Investment Dictionary, Investopedia Inc, retrieved 11-9-2010.
75. The objective is the “stabilisation of greenhouse gas concentrations in the atmos-
phere at a level that would prevent dangerous anthropogenic interference with the
climate system”.
14| INTERNATIONAL ENVIRONMENTAL LAW 471

world’s largest carbon credit project that will help replace 400 million
incandescent light bulbs with energy saving CFL bulbs at dirt-cheap
prices in a year, while preventing 40 million tonnes of carbon from enter-
ing the atmosphere annually. Tonnes of carbon dioxide will be saved by
using the CFL tubes. The project has got clearance as a “programme
for activities” under the UN system which allowed Bureau of Energy
Efficiency (BEE) to make the one-time investment of resources and time
to get a clearance for the scheme which the entrepreneur or investors can
take advantage of as they get on board any time later.

4. INDIAN CONSTITUTION AND

INTERNATIONAL ENVIRONMENTAL LAW
India is a member of the UNO since its inception. India rather believes
that most of the problems which this world is facing today relates to
humanity, world over equally, and therefore, there must be concerted
and integrated efforts to deal with them; for example, problems of popu-
lation, poverty and pollution. To some extent these problems can be dealt
on regional basis but all problems cannot be said to be local problems.
All the nations, rich or poor, developed or developing, north or south,
are facing the problems of pollution. Thus, the problem of pollution is
to a large extent a transboundary problem and some time its effects are
widely rampant and recognise no boundaries. It is true that we have “one
planet to live on” and “we have common future”. Therefore, the strategy
to deal with this gigantic problem of pollution must be cooperative and
coordinated one. All the nations must join hands to combat the problem
of pollution before it assumes threatening dimensions and brings us on
the brink of disaster.
In this regards, various international conferences have been organ-
ised to forge a common strategy to contain and control the pollution
problems, and many international agreements and regional pacts have
been entered into for this purpose. The first International Conference
on Environment and Development was organised at Stockholm in
1972 (5-15 June 1972) in which 107 nations participated. But only two
heads of States came to address the conference and one of them was the
then Prime Minister of India—Mrs Indira Gandhi. Twenty-six princi-
ples were propounded, which are known as Magna Carta on Human
Environment. Similarly, India has also participated in the Earth Summit
at Rio de Janeiro (1992); the Nairobi Conference (1982); the World
Charter for Nature (1982); the Montreal Conference (1987); the Kyoto
Protocol (1997); the Basel Conference (1989); the Convention on the Law
of Seas (1989); the Convention on International Trade in Endangered
Species (CITES, 1973); the Convention on Biological Diversity (1992);
the Convention on Climate Change (1992) and many others.
472 ENVIRONMENTAL LAW [c HAP.

ATIONAL
5. INDIAN CONSTITUTION AND INTERN
AGREEMENTS AND DECLARATIONS
nants,
Following are three ways in which international agreements, cove
etc., become the part of national law in India:
of
1. Article 51 of the Indian Constitution provides for “promotion
international peace and security”. It provides under clause (c) that
“the State shall endeavour to foster respect for international law
and treaty obligations in the dealings of organised people with
one another”. Thus, the international treaties do not automatically
become part of our national law. It has to be incorporated into the
legal system by an appropriate law passed by Indian Parliament.
However, Indian courts while interpreting statutes have to main-
tain harmony with the rules of international law.”
2. Moreover, national legislation, even if contrary to international
law, has to be respected and given priority.
3. An extra-ordinary treaty is to be construed as contract between
participating nations and is to be affected.”
Article 25378 confers wide and overriding power on Parliament to make
any law for the whole or any part of India for implementing any treaty,
agreement or convention with any other country or countries, or any
decision made at any international conference, association or body. Thus,
Article 253 fully authorises Parliament to enact legislation to implement
the international treaties, etc., even though they fall within the State
List II. This power overrides the “normal and federal State” jurisdic-
tional lines and distribution of legislative powers between the State and
the Centre. Further, the power of the Central Government to enact a law
for implementing the international treaty is not free from constitutional
restrictions, such as they are subject to fundamental rights. The Supreme
Court in People’s Union for Civil Liberties (PUCL) v. Union of India”,
after referring to International Covenant on Civil and Political Rights,
1966 and the Universal Declaration of Human Rights, 1948 observed,
“It is almost an accepted proposition of Law that the rules of customary
international law which are not contrary to the municipal law shall be
deemed to be incorporated in the domestic law.”
Sikri CJ also clarified in Kesvananda Bharati v. State of Kerela®®:

76. People United for Better Living in Calcutta v. State of W.B., AIR 1993 Cal 215; Jolly
George Varghese v. Bank of Cochin, (1980) 2 SCC 360: AIR 1980 SC 470.
77. Berubari Union (I), re, AIR 1960 SC 845; Maganbhai Ishwarbhai Patel v. Union of
India, (1970) 3 SCC 400.
78. Entries 13 & 14 of the Union List reinforces Art. 253.
79. (1997) 1 SCC 301: AIR 1997 SC 568.
80. (1973) 4 SCC 225: AIR 1973 SC 1461.
14| INTERNATIONAL ENVIRONMENTAL LAW 473

It seems that, in view of Article 51 of the Constitution, this court must inter-
pret the language of the Constitution, if not intractable, which is after all a
municipal law, in light of the United Nations Charter and the solemn decla-
rations subscribed by India.
Therefore, the Supreme Court has referred to, time and again, several
international covenants while interpreting fundamental rights and cases
relating to environmental pollution and ecological imbalances.
In Centre for Environmental Law, World Wide Fund-India v. Union
of India*', the court referred many international instruments to decide
the case, such as the Stockholm Declaration, 1972; the Conventions
on Biological Diversity of 1992 (CBD); the International Union for
Conservation Resolution of 1963 (IUCN); the Red List of International
Union for Conservation, 2008; the International Trade in Endangered
Species of Wild Fauna and Flora, 1973 (CITES). On the basis of them, var-
ious laws and policies have been passed and formulated, for example, the
Biological Diversity Act, 2002; the National Forest Policy (NFP), 1988;
the National Environment Policy (NEP) 2006; the National Biodiversity
Action Plan (NBAP), 2008; the National Action Plan on Climate Change
(NAPCC), 2008; and the Integrated Development of Wildlife Habitats
a centrally sponsored scheme framed in the year 2009 and integrated
development of National Wildlife Action Plan, 2002-2016.

6. INTERNATIONAL ENVIRONMENTAL LAW AND

ITS APPLICATION INTO THE DOMESTIC LAW
As has been made clear that Indian Parliament alone has the power to
make laws on the international laws, Parliament has passed many envi-
ronmental laws which have been enacted to implement the international
environmental treaties, covenants and protocols, etc. Following are some
of the instances where such laws have been passed by Indian Parliament:
1. The Chemical Weapons Convention Act, 2000 has been passed to
give effect to the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons signed by
India at Paris on 14 January 1993. Schedule of the Act has repro-
duced the provisions of the abovementioned convention from
Article 1 to 24.
2.“The Environment (Protection) Act, 1986 and the Air (Prevention
and Control of Pollution) Act, 1981 have been passed to imple-
ment the decision taken at Stockholm in 1972 which is known as
Stockholm Declaration, 1972.
3. CFC Substance Rule of 2000 notified under the Environment
(Protection) Act, 1986 has been passed to implement the Montreal

81. (2013) 8 SCC 234.

474 ENVIRONMENTAL LAW

Conference, 1987, Vienna Convention for the Protection of the

Ozone Layer, 1985 and Kyoto Protocol, 1977, etc.
The Public Liability Insurance Act, 1991 was passed to fulfil the
commitment made by India “to develop national laws regarding
liability and compensation for the victims of pollution and other
environmental damages” called upon as per decision at the UN
Conference on Environment and Development held at Ric de
Janeiro in June 1992.
Similarly, the National Environment Tribunal Act, 1995 provides
that the Act has been passed as “decisions were taken at the UN
Conference on Environmental and Development held at Rio de
Janeiro in June 1992, in which India participated, calling upon
States to develop national laws regarding liability and compensation
for the victims of pollution and other environmental damages”.*
The Wild Life (Protection) Act, 1972 was amended by Indian
Parliament to give effect to various provisions of the Convention
on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), 1973%4, since India was a party to this convention.
This Act was amended to fall in line with the global concept to
protect and preserve the endangered species like African elephant
and to ban the import of ivory. Similarly, the Wild Life (Protection)
Amendment Act, 2002 has been passed by Parliament to completely
ban the possession of ivory whether by a trader or by a person.®*°

82. As mentioned in the aims and objects of the Act.

83. Ibid.
84. See, object and reasons of the Amendment Act, 1993 provides it.
85. It came into force on April 2002.
 APPENDIX 1
Some Important Pronouncements

Case No. 1
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613

[Bhopal Gas Disaster case regarding the constitutionality of the

Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985]

On the night of 2 December 1984, there was a massive escape of lethal

gas from methyl isocyanate (MIC) storage tank of Bhopal plant of the
Union Carbide (I) Ltd. (UCIL) resulting in large-scale death and disaster.
The Union Carbide Corporation designed, constructed, owned, oper-
ated, managed and controlled this chemical plant in the City of Bhopal
(MP). This MIC chemical was used in the manufacture of agricultural
pesticides produced and marketed by Union Carbide. All the time UCIL
knew that MIC was an extraordinary reactive, toxic, volatile, flammable
and ultra-hazardous chemical. Even small concentrations of MIC pose
an immediate danger to living beings and environment.
Within a week after the disaster, many American lawyers came to
Bhopal and obtained power of attorney and suits were filed in the US
against the Union Carbide Corporation (UCC) and UCIL on behalf of
several victims. Some suits were filed before the District Court of Bhopal.
KeenanJ of the US District Court, South District of New York, by his
order dated 12 May 1986, placing reliance on the US Supreme Court’s
decision in Gulf Oil Corpn. v. Gilber' and Piper Aircraft Co. v. Reyno
Hartzell Propeller Inc.’, dismissed the consolidated cases on the ground
of “forum non-conveniens”, subject to the following conditions: 1) the
UCC would consent to submit to the jurisdiction of the Indian courts,
2) the UCC would agree to satisfy any judgment rendered by an Indian

1. 91 LEd 1055: 330 US 501 (1947).

2. 70 LEd 2d 419: 454 US 235 (1981).
476 ENVIRONMENTAL LAW [APP.I

Court, 3) the UCC would be subject to discovery under the model of the
US Federal Rules of Civil Procedure after appropriate demands by the
complainants. .
The Union of India filed a suit for damages in the District Court of
Bhopal, which ordered for interim relief amounting to %350 crores (US
$3500 million) to the gas victims. On appeal, the High Court modified
this order and granted interim relief of 250 crores. The matter then
came before the Supreme Court by special leave. When the matter was
being argued there, a settlement was arrived between the Union of India
and the UCC under which a sum of US $470 million was agreed to be
paid by the UCC to the Union of India in full settlement of all the claims
of all victims of the gas leakage. The Union of India also agreed to with-
draw certain cases that had been initiated against the officials of UCC
and UCIL in this connection. This settlement received the imprimatur of
the Supreme Court in its orders dated 14 February 1989 and 15 February
1989. The reasons for the orders were stated by the court in its order
dated 4 May 1989, setting forth the Supreme Court’s reasons for urging
the settlement.
To deal with this gigantic situation, Indian Parliament passed the
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. This Act
empowered the Union of India to take care of the conduct of all litiga-
tion relating to the Bhopal disaster. On the basis of this Act of 1985,
the Union of India filed cases against the UCC and also entered into a
compromise (settlement) with the UCC and UCIL for US $470 million.
The present writ petition was filed to challenge the constitutional
validity of the abovementioned statute on the ground of the divestiture
of the claimants’ individual rights to legal remedy against the UCC—a
multinational, for the consequences of carrying on dangerous and haz-
ardous activity in India. It also violated, according to the petition, the
fundamental rights guaranteed under Articles 14, 19 and 21 of the
Indian Constitution.
The Indian Supreme Court declared the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985 constitutionally valid and examined it
on the basis of the right of the Union of India to file the petition and enter
into a settlement with the UCC. It further examined the various clauses
of the Act. Some significant suggestions were also made by the court.
Some of the details of the judgment are given below.

Right of the State to represent the victims

The Act has given power to the Central Government to represent
the
claims, meaning thereby the monetary claims. The Act does
not, either
expressly or impliedly, deal with the extent of the damages
or liability.
“Neither Section 3 nor any other section deals with any cons
equences of
T| CHARAN LAL SAHU v. UNION OF INDIA 477

criminal liability.... Section 3 of the Act which substitutes the Central

Government in place of the victims is not arbitrary.”

Act is not arbitrary

The court declared that the power conferred by the Act on the Central
Government to conduct the suit and enter into compromise is not unan-
alysed or arbitrary. The power is clearly exercisable only in the ultimate
interest of the victims. It is circumscribed for the purpose of the Act.
Further sufficient guidelines emerge from the “Statement of Objects and
Reasons” of the Act which make it clear that the aim and purpose of
the Act is to secure speedy and effective redress to the victims of the gas
leak and that all steps taken in pursuance of the Act should be for the
implementation of the object. Whether this object has been achieved by
a particular settlement will be a different question but it is altogether
impossible to say that the Act itself is bad for the reasons alleged.

Liability of the parent company

A transnational corporation should be made liable and subservient to
the laws of our country and the liability should not be restricted to the
affiliate company only, but the parent corporation should also be made
liable for any damage caused to human beings or ecology. The law must
require transnational corporations to agree to pay such damages as may
be determined by statutory agencies and forum constituted under it with-
out exposing the victims to long-drawn-out litigation...
Element of punitive liability was regarded by the court as a moot ques-
tion and uncertain province of law. Thus, the court did not express its
opinion on the question whether the victims, or their legal heirs and legal
representatives, get their rights substituted in the Central Government
along with the concomitant right to institute such proceedings, with-
draw such proceedings or suit and also to enter into a compromise. The
victims or the heirs or the legal representatives of the victims are substi-
tuted and their rights are vested in the Central Government. Therefore,
the Central Government is authorised to act along with the claimants in
respect of proceedings instituted outside India subject to the orders of
such courts or authorities.

Basis of this right

There is a concept of parens patriae in Hindu Law as well as in English
Law, which literally means “parent of the country”. Thus, accordingly the
Crown is the constitutional protector of all property subject to charitable
 ENVIRONMENTAL LAW [APP.
478

trusts. It denotes the sovereign power of the State of guardianship over

persons under disability in the public interest. The court stated:
Our Constitution makes it imperative for the State to secure to all its citi-
zens the rights guaranteed by the Constitution and where the citizens are
not in a position to assert and secure their rights, the State must come
into the picture and protect and fight for the rights of the citizens. The
Preamble to the Constitution, read with the Directive Principles contained in
Articles 38, 39 and 39-A enjoin the State to take up these responsibilities. It
is the protective measure to which the social welfare state is committed. It is
necessary for the State to ensure the fundamental rights in conjunction with
the Directive Principles of State Policy to effectively discharge its obligation
and for this purpose, if necessary, to deprive some rights and privileges of
the individual victims or their heirs to protect their rights better and secure
these further.
The doctrine of parens patriae cannot also be confined to only qua-
si-sovereign right of the State independent of and behind the title of the
citizen. The concept of parens patriae can also be varied to enable the govern-
ment to represent the victims effectively in domestic forum if the situation so
warrants. Conceptually and jurisprudentially, the doctrine of parens patriae
is not limited to representation of some of the victims outside the territories
of the country. It is true that the doctrine has been so utilised in America
so far. Where citizens of a country are victims of a tragedy because of the
negligence of any multinational in peculiar situation arises which calls for
suitable effective machinery to articulate and effectuate the grievances and
demands of the victims, for which the conventional adversary system would
be totally inadequate. The State in discharge of its sovereign obligation must
come forward. Thus parens patriae doctrine can be invoked by sovereign
State within India.
[It was further explained by the court:] What the Central Government has
done in the instant case was an expression of its sovereign power. This power
is plenary and inherent in every sovereign State to do all the things which
promote the health, peace, morals, education and good order of the people
and tend to increase the wealth and prosperity of the State. Sovereignty is
difficult to define. By the nature of things, the State sovereignty in these mat-
ters cannot be limited. It has to be adjusted to the conditions touching the
common welfare when covered by legislative enactments. This power is to the
public what the law of necessity is to the individual. It is comprehended in
the maxim salus populi suprema lex —regard for public welfare is the highest
law. It is not a rule, it is an evolution. This power has always been as broad as
public welfare and as strong as the arm of the State. This can only be meas-
ured by the legislative will of the people, subject to the fundamental rights
and constitutional limitations. This is an emanation of sovereignty subject to
as aforesaid. Indeed, it is the obligation of the State to assume such responsi-
bility and protect its citizens. The jurisdiction of the State’s power cannot be
circumscribed by the limitations of the traditional concept of parens patriae.
Jurisprudentially, it could be utilised to suit or alter or adapt itself
to the
changed circumstances.
 T| CHARAN LAL SAHU v. UNION OF INDIA 479

It was observed by the court that the victims of the disaster were no
match for the multinational companies or the government, consider-
ing their physical, mental, financial viability and position of litigation.
They were not in a position to look after their interests effectively or
purposefully.
The Act, therefore, cannot be considered to be unreasonable merely
because in addition to the right to institute a suit or other proceedings,
it also empowers the government to withdraw the proceedings or enter
into a compromise. Any authority given to conduct a litigation cannot be
effective, unless it is accompanied by an authority to withdraw or settle
the same if the circumstances call for it. The vagaries of a litigation of
this magnitude and intricacy could not be fully anticipated. In most of
the mass disaster cases reported, proceedings finally end in a compro-
mise if only to avoid an indefinite prolongation of the agonies caused by
such litigation.

Not violative of Article 14

The Act is a special legislation providing a special procedure for a kind
of special class of victims. Sections 3 and 4 give the Central Government
an exclusive right to act in place of the persons who are entitled to make
claims or have already made claims. In view of the enormity of the dis-
aster, the claimant victims, as they were placed against the multinational
and a big Indian corporation and in view of the presence of foreign con-
tingency lawyers to whom the victims were exposed, can legitimately
be described as a class by themselves, different and distinct, sufficiently
separate and identifiable, and are entitled to special treatment for effec-
tive, speedy, equitable and best advantageous settlement of their claims.
If duality of rights are given to the Central Government along with the
victims in institution of proceeding for the realisation or the enforcement
of the claims arising out of the Bhopal gas leak disaster, then that would
be so cumbersome that it would not be speedy, effective or equitable
and would not be the best or more advantageous procedure for securing
claims arising out of the leakage. There indubitably is differentiation. But
this differentiation is based on a principle which has rational nexus with
the aim intended to be achieved by this differentiation. There were suffi-
cient grounds for such differentiation and different treatment. In treating
the victims of the gas leak disaster differently and providing them a pro-
cedure which was just, fair, reasonable and which was not unwarranted
or unauthorised by the Constitution, Article 14 is not breached.
The Act does not create new causes of action or create special courts.
The jurisdiction of the civil court to entertain suit would still arise out of
Section 9, Civil Procedure Code, 1908 (CPC), and the substantive cause
of action and the nature of the reliefs available would also continue to
480 ENVIRONMENTAL LAW [APP.

remain unchanged. The only difference produced by the provisions of

the Act would be that instead of the suit being filed by the victims them-
selves, the suit would be filed by the Central Government on their behalf.

Whether the principle of natural justice is applicable in such

situation?
The State has taken over the rights and claims of the victims in the exer-
cise of sovereignty in order to discharge the constitutional obligations
as the parent and guardian of the victims who in the situation as placed
needed the umbrella of protection. Thus, the State has the power of juris-
diction and for this purpose unless the Act is otherwise unreasonable or
violative of the constitutional provisions, no question of giving a hearing
to the parties for taking over these rights by the State arises. For legisla-
tion by Parliament, no principle of natural justice is attracted, provided
such legislation is within the competence of legislature, which indeed in
the present Act is within the competence of Parliament. Section 3 makes
the Central Government the dominus litis, the master of the suit.
Section 4 keeps the substance of the rights of the victims intact. It ena-
bles, and indeed obliges the government to receive assistance from indi-
vidual claimants to the extent they are able to offer the same. If any of the
victims or their legal advisers have any specific aspect which they would
like to urge, the Central Government shall take it into account. Again,
if any individual claimant at his own expense retains a legal practitioner
of his own choice, such legal practitioner will have to be associated with
the government in the conduct of any suit or proceeding relating to his
claim. Sections 3 and 4 thus, combine together the interests of the weak,
illiterate, helpless and poor victims as well as the interests of those who
could have managed for themselves, even without the help of this enact-
ment. The combination thus envisaged, enables the government to fight
the battle with the foreign adversary with full aid and assistance of such
victims or their legal advisers as are in a position to offer any such assis-
tance. A conjoint reading of Sections 3 and 4 would, therefore, show that
there has been no real total deprivation of the right of the claimants to
enforce their claims for damages in appropriate proceedings before any
appropriate forum. There is only a restriction of this right which, in the
circumstances, is totally reasonable and justified. The validity of the Act
is, therefore, not liable to be challenged on this ground.
Section 4 of the Act adequately safeguards the interests of individual
victims. It enables each one of them to bring to the notice of the Union of
India any special features or circumstances which he would like to urge
in respect of any matter and if any such features are brought to its notice,
the Union is obliged to take it into account. Again, the individual claim-
ants are also at liberty to engage their own counsel to associate with
the
1] CHARAN LAL SAHU v. UNION OF INDIA 481

State counsel in conducting the proceedings. The provision of the statute

is an adaptation of the principle of Order I, Rule 8 and of Order XXIII,
Rule 3-B CPC in its application to the suits governed by it and, though
the extent of participation allowed to the victims is somewhat differently
enunciated in the legislation, substantially speaking, it does incorporate
the principles of natural justice to the extent possible in the circum-
stances. The statute cannot, therefore, be faulted, on the ground that it
denies the victims an opportunity to present their views....

Principle of natural justice not followed—but no wrong done

Principles of natural justice are integrally embedded in our constitutional
framework and their pristine glory and primacy cannot and should not
be allowed to be submerged by the exigencies of particular situations or
cases. The Supreme Court must always assert primacy of adherence to
the principles of natural justice in all adjudications. But at the same time,
these must be applied in a particular manner in particular cases having
regard to particular circumstances.
It was held by the court that Section 4 entails that before entering into
any settlement affecting the rights and claims of the victims, some kind
of notice or information should have been given to the victims. And no
notice was given in this case. The court observed:
Principles of natural justice are fundamental in the constitutional set up of
this country. No man or no man’s right should be affected without an oppor-
tunity to ventilate his views. Justice is a psychological yearning in which men
seek acceptance of their viewpoint by having an opportunity of vindication
of their viewpoint before the forum or the authority enjoined or obliged to
take a decision affecting their right. Yet, in particular situations, one has to
bear in mind how an infraction of that should be sought to be removed in
accordance with justice.

Post-decisional hearing will do more harm

Though on the materials available, the victims will have to express their
views, the victims have not been able to show at all any other point
or material which would go to impeach the validity of the settlement.
Therefore, though settlement without notice is not quite proper, on the
materials so far available, justice has been done to the victims but jus-
tice has not appeared to have been done. But in view of the magnitude
of the misery involved and the problems in this case, in the facts and
the circumstances of this case, keeping the settlement in abeyance and
giving notice to the victims for a post-decisional hearing would not be
in the ultimate interest of justice. Sufficient opportunity being available
when review application is heard on notice, as directed by the court, no
482 ENVIRONMENTAL LAW [A PP,

injustice has
further opportunity is necessary and it cannot be said that
sometimes
been done. “To do a great right” after all, it is permissible
this is
“to do a little wrong”. In the facts and circumstances of the case,
out
one of those rare occasions. Though entering into a settlement with
the required notice is wrong, in the facts and the circumstances of this
case to direct that notice should be given now would not result in doing
justice in the situation. In the premises, no further consequential order is
necessary by the Supreme Court.
It was further observed by the court that “opportunity of being heard
was afforded to the victims when these applications were heard... after
utmost publicity” and also at the time the review petition was being
heard.
The court accepted that prima facie these were good reasons to set
aside the settlement on the ground that the principles of natural justice
were violated, but because of practical complications that could arise as
a result of such an order, the court did not express a final opinion on the
validity of the settlement.

Quantum of compensation: how far sufficient?

Moreover claims have already been filed and these are being scrutinised
and processed. A correct picture as to whether the amount of compen-
sation for which the claims have been settled is meagre, adequate or
excessive will emerge only at that stage when all the claims have been
processed and their aggregate is determined. In these circumstances, no
useful purpose will be served by a post-decisional hearing on the quan-
tum of compensation to be considered adequate for settlement.
The Act in question deals with civil liability and not with criminal lia-
bility and the law, in measuring civil liability, attaches more importance
to the principle of compensation than that of punishment. The damages
shall be calculated on the basis of the law enunciated by the court in
M.C. Mehta v. Union of India’.
For these reasons, it would seem more correct and proper not to dis-
turb the orders of 14 and 15 February 1989 [Union Carbide Corpn. v.
Union ofIndia, (1989) 1 SCC 674] on the ground that the rules of natural
justice have not been complied with, particularly in view of the pendency
of the review petition.

Recommendations
1. The court emphasised that while granting permission or licence for
running an industry dealing in inherently dangerous and hazardous

3. (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
T| CHARAN LAL SAHUv. UNION OF INDIA 483

substances, the government should lay down some norms and

standards.
2. The proposal of the industry must be examined by an Expert
Committee.
3. Sufficient safety measures should be formulated and scheme of
enforcement be indicated in it.
4. “Industrial Disaster Fund” be created by the industries to be avail-
able for payment of damages out of the said fund in case of an
accident.
5. The basis for damages in cases of leakage or accident should be
statutorily fixed taking into account the nature of damages and
consequences thereof, and provisions should also provide for deter-
rent or punitive damages.
6. Law relating to damages, payment of interim damages or compen-
sation to the victims of an industrial accident should be seriously
and scientifically examined by appropriate agencies.
7. Law made by Parliament should provide for constitution of tribu-
nals regulated by special procedure for determining compensation
to victims of industrial disaster or accident, and an appeal against
which may lie to the Supreme Court on limited grounds of ques-
tion of law only after depositing the amount determined by the
tribunal.
Keeping in view the various observations of the Supreme Court in the
above case, the Indian Parliament has passed various statutes, i.e. the
Public Liability Insurance Act, 1991; the National Environment Tribunal
Act, 1995; the National Environment Appellate Authority Act, 1997.
 CASE_NLOs..2

M.C. Mehta v. Union of India (“Oleum Gas Leakage or

Shriram Food and Fertilizer case”), (1987) 1 SCC 395
[The Supreme Court had already pronounced two judgments in
this case reported in (1986) 2 SCC 176 and (1986) 2 SCC 325, but the
case came before the court for a third time as a writ petition under
Article 32 of the Constitution, as it involved some questions of sem-
inal importance and highly-constitutional significance. Therefore,
this writ petition was decided by the Constitutional Bench of the
court headed by Bhagwati J.]

Shriram Food and Fertiliser Industry (SFFI) was a subsidiary of Delhi

Cloth Mills Ltd. in Delhi. SFFI had several units and was engaged in
the manufacture of caustic soda, chlorine, hydrochloric acid, vanaspati,
soap, sodium sulphate, etc. The plant in question producing caustic and
chlorine was commissioned in 1949. On 4 December 1985, a major leak-
age of oleum gas took place from one of the units of SFFI. This leakage
affected a large number of persons— both amongst the workmen and the
public. Moreover, an advocate practising in the Tis-Hazari courts died
on account of inhalation of the oleum gas. The leakage occurred due to
the bursting of a tank containing oleum gas as a result of the collapse
of the structure on which it was mounted. The District Magistrate, on 6
December 1985, ordered the closure of the industry under Section 133,
Criminal Procedure Code (CrPC) and removal of the chemical gases to
some safe place.
A writ petition was filed before the Supreme Court under Article 32
of the Constitution on 7 December 1985. The court on 13 December
1985 by an order allowed the petitioner to appoint a committee to visit
the caustic chlorine plant to ascertain whether the recommendations of
the Manmohan Committee (constituted in March 1985) were properly
implemented or not and secondly, appointed the Chief Metropolitan
Magistrate as an officer to receive and dispose of the claims for com-
pensation cases. The petitioner appointed Dr G.D. Agarwal Committee
which pointed out various inadequacies in the plant and expressed
that the plant be shifted from its present location. The court appointed
another committee under the Chairmanship of Dr Nilay Chowdhary
with two members to inspect the plant in question and submit its report
on the following three points:
 OLEUM GAS LEAKAGE CASE 485

1. Whether the plant can be allowed to recommence the operations in

its present state and condition?
2. If not, what are the measures required to be adopted against the
hazard or possibility of leakage, explosion, pollution of air or
water?
3. How many safety devices against the above hazards and possibility
exist in the plant at present and which of them, though necessary,
are not installed in the plant?
Dr Nilay Chowdhary Committee agreed with the Manmohan Committee
and made a report setting out 14 recommendations which were required
to be complied with in order to minimise the hazards due to possible
chlorine leakage.
Meanwhile, when the proceedings were going on in the Supreme Court,
the inspector of factories exercising his powers under Section 40(2),
Factory Act, 1948 prohibited on 7 December 1985, the Shriram Industry
from using the caustic chlorine and sulphuric acid plant till adequate
safety measures were adopted. Similarly, the Assistant Commissioner
(Factories) directed, on 24 December 1985, the Shriram Industry to stop
industrial use of premises.
The court considered reports of all the committees appointed for this
purpose and observed that the plant was set up some 35 years ago and at
present, a sizable population was living in the vicinity of the factory and,
therefore, it was a risk or hazard to the large number of people. Therefore,
the recommendations made by the Manmohan Singh Committee and
Dr Nilay Chowdhary Committee must be implemented in toto to elimi-
nate the possible risk or hazard before the Shriram Industry is permitted
to restart.
Since chlorine gas is dangerous for the life and health of the commu-
nity, its escape; either from the storage tanks or from the filled cylin-
ders, is likely to affect the health and well-being of the workmen and the
people living in the vicinity. While deciding the question of restarting
of the plant, the court observed that the interest of the 4000 workmen
employed in it should not be ignored. Further, the Delhi Water Supply
Undertaking was also getting supply of chlorine from Shriram Industry,
which, in case of closure of the plant, would be seriously hampered.
The industry was also ordered to obtain the “consent order” from the
Central Pollution Control Board under Section 25, Water (Prevention and
Control of Pollution) Act, 1974 and under Section 21, Air (Prevention
and Control of Pollution) Act, 1981. Pursuant to the orders, the Shriram
Industry installed effluent treatment plants, and a pilot plant based on
dissolved air flotation technology to purify the air.
The Delhi Legal Aid and Advise Board and Delhi Bar Association filed
applications for award of compensation to persons who had suffered
 [APP.
486 ENVIRONMENTAL LAW

ions raised a
harm on account of escape of oleum gas. These applicat
were referred
number of issues of great constitutional importance which
this
to the Constitution Bench. Bhagwati J pronounced the decision of
Bench dealing with these cases:
1. Scope and ambit of the jurisdiction of the Supreme Court under
Article 32.—The court opined that the ambit and scope of Article 32 has
been discussed in Bandhua Mukti Morcha v. Union of India’
It may now be well settled that Article 32 does not merely confer power on
this court to issue direction, order or writ for enforcement of the fundamen-
tal rights but it also lays down a constitutional obligation ...to protect the
fundamental rights of the people and for that purpose this court has all inci-
dental and ancillary powers including the power to forge new remedies and
fashion new strategies designed to enforce the fundamental rights.
The court also observed that “procedure being merely a handmaiden of
justice, it should not stand in the way of access to justice to the weaker
sections of Indian humanity”. As a result of which “epistolary jurisdic-
tion” was recognised; and “therefore where the poor and the disadvan-
taged are concerned who are barely eking out a miserable existence with
their sweat and toil and who are victims of an exploited society without
any access to justice”*, the court will not insist on a regular writ petition
and even a letter addressed by a public spirited individual or a social
action group acting pro bono publico would suffice to ignite the jurisdic-
tion of the court.
The court also made it clear that the power of the court under
Article 32 is not only injunctive in ambit, preventing the infringement of
a fundamental right, but it is also remedial in scope and provides relief
against a breach of fundamental rights. Thus, the power of the court to
grant such remedial relief may include the power to award compensation
in appropriate cases. But this right should not be used as a substitute for
enforcement of the right to claim compensation for the infringement of a
fundamental right through the ordinary process of law.
2. Whether Article 21 is available against Shriram Industry as the
fundamental rights can be claimed against the State within the mean-
ing of Article 12.Shriram Industry was registered under the Industries
(Development and Regulation) Act, 1951 and obtained a licence under
the Factory Act, 1948. By issuing licence and making registration, the
State has a “functional control” over the industry. But this does not put
it on par with statutory or constitutional bodies under Article 12 of the
Constitution. The American doctrine of State action could not be made
applicable here as the social conditions in our country are different.
1. (1984) 3 SCC 161: 1984 SCC (L&S) 389.
2. S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149; People’s Union
for Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982 SCC (L&S) 275.
1] OLEUM GAS LEAKAGE CASE 487

The court declared that the horizon of Article 32 has been expanded
by the court to “inject respect for human rights and social conscience in
our corporate structure”. But a private corporation under the functional
control of the State engaged in an activity which is hazardous to the
health and safety of the community should be subject to the limitations
of right to life under Article 21 of the Constitution.
But the court did not make any definite pronouncements whether such
private corporations be treated as “other authorities” provided under
Article 12 of the Constitution.
3. What is the measure of liability of an enterprise engaged in haz-
ardous or inherently dangerous substances.—The rule of Rylands v.
Fletcher’? which was evolved in 1860 is not applicable to present-day
circumstances.
This rule, evolved in the r9th century at a time when all these developments
of science and technology had not taken place, cannot afford any guidance
in evolving any standard of liability consistent with the constitutional norms
and needs of the present-day economic and social structure. We need not
feel inhibited by this rule which was evolved in the context of a totally dif-
ferent kind of economy. Law has to grow in order to satisfy the needs of
the fast-changing society and keep abreast of the economic developments
taking place in the country.... Law cannot afford to remain static. We have
to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly-industrialised economy.
BhagwatiJ also declared:
We no longer need the crutches of a foreign legal order.... We in India, can-
not hold our hands back and I venture to evolve new principles of liability
which English courts have not done. We have to develop our own law and
if we find that it is necessary to construct a new principle of liability to deal
with an unusual situation which has arisen and which is likely to arise on
account of hazardous and inherently dangerous industry....

New principle of liability

Because of the reasons stated above, the court evolved the new principle
of liability as follows:
We are of the view that an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to the health
and safety of the persons working in the factory and residing in the sur-
rounding areas owes an absolute and non-delegable duty to the community
to ensure that no harm results to anyone on account of hazardous or inher-
ently dangerous nature of the activity which it has undertaken. The enter-
prise must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged must be conducted with

3. (1868) LR 3 HL 330: (1861-73) All ER Rep 1 (HL).

488 ENVIRONMENTAL LAW

the highest standards of safety and if any harm results on account of such
activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all rea-
sonable care and that the harm occurred without any negligence on its part.
[To sustain the principle it was declared that] the principle is sustainable
on the ground that the enterprise alone has the resource to discover and
guard against hazards or dangers and to provide warning against potential!
hazards.
[It was also explained by the court that] the enterprise must be held strictly
liable for causing such harm as a part of the social cost for carrying on haz-
ardous or inherently dangerous activity.
Thus, such a liability does not have any exception.

Measure of compensation
The court, while explaining the measure of liability, observed:
The measure of compensation in the kind of cases referred to... must be cor-
related to the magnitude and capacity of the enterprise because such com-
pensation 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 for carry on of the hazardous or
inherently dangerous activity by the enterprise.
The Delhi Administration was directed to provide funds to the Delhi
Legal Aid and Advice Board for the purpose of filing and prosecuting
such actions; and the Delhi High Court to nominate one or more judges
to try such actions for compensation expeditiously.
 CasE No. 3
M.C. Mehta v. Union of India (“Ganga
Pollution case”), (1988) 1 SCC 471

[The case related to Sections 16 and 17, Water (Prevention and

Control of Pollution) Act, 1974 and Sections 3 and 5, Environment
(Protection) Act, 1986. It also discussed various provisions of the
U.P. Nagar Mahapalika Adhiniyam, 1959 relating to the duties of
municipalities. ]

Mr M.C. Mehta, an advocate of the Supreme Court and a social activ-

ist, fled a writ petition in the form of a public interest litigation under
Article 32 before the Indian Supreme Court, New Delhi. The petition
demanded for the issuance of a writ/order/direction in the nature of man-
damus to the respondents, including the State of U.P. and municipal cor-
porations and councils of the State of U.P., to restrain them from letting
out trade effluents into the river Ganga. The case involved 89 named
respondents.
The writ mentioned that industries—mostly tanneries—located on
the banks of the river and populated areas of Kanpur and Calcutta were
discharging trade effluents into the river Ganga. These trade effluents
were highly toxic compared with the domestic sewage water which was
also discharged into the river. The water of the river Ganga had become
highly noxious as the tanneries and nine nallas were discharging trade
effluents and domestic sewage into the river. At various places half-burnt
bodies and other noxious materials were also thrown into the river. Due
to the failure of the authorities to obey the statutory duties for several
years, the water in the river Ganga at Kanpur could no longer be used by
the people either for drinking or for bathing. Mr Mehta read an article
“Fire in Ganga” which was on account of the toxicity of the water of the
river Ganga and on the basis of the same, he filed this writ petition.
The petitioner claimed that neither the government nor the people
were giving adequate attention to stop the pollution of the river and steps
have, therefore, to be taken for the purpose of protecting the cleanliness
of the river Ganga, which is in fact the life sustainer of a large part of
northern India.
The court directed the issue of notice under Order 1, Rule 8, Civil
Procedure Code, 1908 (CPC), treating this case as a representative action
 LAW |APP.
490 ENVIRONMENTAL

by publishing the gist of the petition in the newspapers in circulation in

northern India and calling upon all industrialists, municipal corpora-
of the area
tions and town municipal councils, having the jurisdiction
through which the river Ganga flows, to explain. Pursuant to the notice
the
a large number of industrialists and local bodies appeared before
court. Some of them filed counter-affidavits explaining the steps taken
by them for treating the trade effluents before discharging them into the
river. The case of the tanneries at Jajmau near Kanpur was taken up for
hearing first.
It was represented by the respondents that tanneries of Kanpur from
time to time represented that due to lack of physical facilities, technical
know-how and funds, it was not possible to install adequate treatment
facilities. Civic facilities for water supply, sanitation, solid waste removal,
etc., were highly inadequate.
The court cited the directive principle in Article 48-A of the
Constitution which provides that “the State shall endeavour to protect
and improve the environment and to safeguard the forests and wildlife
of the country”, and Article 51-A(g) which imposes a fundamental duty
on the citizens to protect and improve the natural environment, and the
proclamation adopted by the United Nations Conference on the Human
Environment, 1972. It emphasised that notwithstanding the compre-
hensive provisions contained in the Water (Prevention and Control
of Pollution) Act, 1974, State Pollution Control Boards had not taken
effective steps to prevent the discharge of effluents into the river. It was
pointed out that Sections 16 and 17 of the Act laid down the functions
of the Central Board and the State Boards respectively. The State Board
is entrusted with the work of laying down standards for treatment of
sewage and trade effluents to be discharged in a stream or well. But no
effective steps were taken by the State Boards in this respect. Section 24
of the Act prohibits the use of any stream or well for disposal of poison-
ous, noxious or polluting matter and if a person does so, he is liable to be
punished under Section 43 of the Act.
The court also invoked the provisions [Ss. 3 and 5] of the Environment
(Protection) Act, 1986, but remarked that “not much had been done even
after the Act by the Central Government to stop the grave public nui-
sance caused by the tanneries at Jajmau near Kanpur”.
The court also declared that the fact that the industrial effluents were
first discharged into the municipal sewer did not absolve the industries
(tanneries) from being proceeded against under the provisions of law in
force, as it was not disputed that it was ultimately emptied into the river
Ganga and the river’s water was grossly polluted by the effluents.
The industrialists pleaded that most of them could not install primary
treatment plants and secondary system treatment plants for the effluents
as they involved huge investments. The court ruled:
1] GANGA POLLUTION CASE 491

The financial capacity of the tanneries should be considered as irrelevant

while requiring them to establish primary treatment plants. Just like an
industry which cannot pay minimum wages to its workers cannot be allowed
to exist, a tannery which cannot set up a primary treatment plant cannot be
permitted to continue to be in existence, for the adverse effects on the pub-
lic at large which is likely to ensue by the discharging of the trade effluents
from the tannery to the river Ganga would be immense and it will outweigh
any inconvenience that may be caused to the management and the labour
employed by it on account of its closure.
The court ordered that tanneries which did not appear before the court
should stop functioning and, before restarting, must install pre-treat-
ment plants for trade effluents. Further, industries which appeared before
the court were allowed to install pre-treatment plants within six months
(31 March 1988) as approved by the State Board.
The Central Government, the U.P. Pollution Control Board and the
District Magistrate, Kanpur were directed to enforce the orders of the
court faithfully.

Principles laid-down
1. Under Article 32 of the Indian Constitution, a public interest litiga-
tion can be filed and the court shall entertain pollution cases.
2. Water pollution problems, particularly discharging noxious, pol-
sonous and polluting matter into rivers should be dealt with strictly.
It must be stopped altogether as water is the elixir of life and river
valleys have been the cradles of civilization. The cost of checking
pollution is irrelevant looking to the widespread ramifications of
water-borne diseases.
3. Statutory provisions must be strictly enforced and authorities con-
cerned must implement them faithfully.
 Case No. 4
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388

[This case is related to the “public trust doctrine” and its applica-
tion in Indian environmental cases. It is a landmark case in Indian
environmental law.]

Facts

Span Motels Private Limited, in which the family of Indian politician

Kamal Nath has direct links, had floated another ambitious venture,
Span Club. The club was built after encroaching upon 27.12 bighas of
land, including substantial forestland, in 1990. The land was later regu-
larised and leased out to the company on 11 April 1994.
The regularisation was done when Shri Kamal Nath was Minister
of Environment and Forests (MoEF) of the Union of India. The Indian
Government, MoEF by the letter dated 24 November 1993, addressed to
the Secretary, Forest, Himachal Pradesh Government, Shimla, conveyed
its prior approval in terms of Section 2, Forest (Conservation) Act, 1980
for leasing to the motel 27 bighas and 12 biswas of forest land adjoining
to the land already on lease with the motel. This encroachment by the
Span Club led to the swelling of the river Beas, and the swollen river
changed its course and engulfed the Span Club and the adjoining lawns,
washing it away. Under such circumstances the river stream changed its
course, remaining within the valley but swinging from one bank to the
other. The right bank of the river Beas where the motel is located mostly
comes under forest; the left bank consists of plateaus, having steep bank
facing the river, where fruit orchards and cereal cultivation are predom-
inant. For almost five months, the Span Resorts Management used bull-
dozers and earth movers to turn the course of river Beas for a second
time. The heavy earth-mover had been used to block the flow of the river
just 500 metres upstream. The bulldozers were creating a new channel to
divert the river to at least one kilometre downstream.
The petitioners pleaded that due to change of course by the river, it
has caused widespread erosion of the land resulting in the destruction
of vegetation cover of the area and habitat of animals and birds. Large
forest area and crop land submerged in the river water. The area being
 M.C. MEHTA v. KAMAL NATH 493

ecologically fragile and full of scenic beauty should not have been per-
mitted to be converted into private ownership of Span Club and for com-
mercial gains.
Kuldip SinghJ pronouncing the judgment observed:
the notion that the public has a right to expect certain lands and natural
areas to retain their natural characteristic is finding its way into the law of
the land... Historically, we have changed the environment to fit our concep-
tions of property. We have fenced, ploughed and paved. The environment
has proven malleable and to a large extent still is. But there is a limit to this
malleability and certain types of ecologically important resources; for exam-
ple, wetlands and riparian forests can no longer be destroyed without enor-
mous long-term effects on environmental and therefore social stability. To
ecologists, the need for preserving sensitive resources does not reflect value
choices but rather is the necessary result of objective observations of the laws
of nature...In sum, ecologists view the environmental sciences as providing
us with certain laws of nature. These laws, just like our own laws, restrict
our freedom of conduct and choice. Unlike our laws of nature cannot be
changed by legislative fiat; they are imposed on us by the natural world. An
understanding of the laws of nature must therefore inform all of our social
institution.

Public trust doctrine

The honourable justice observed that our legal system, based on English
common law, includes the public trust doctrine as part of its jurispru-
dence. The State is the trustee of all natural resources which are by
nature meant for public use and enjoyment. Public at large is the benefi-
ciary of the seashore, running waters, airs, forests and ecologically frag-
ile lands. The State as a trustee is under a legal duty to protect the natural
resources. These resources meant for public use cannot be converted into
private ownership .... The aesthetic use and the pristine glory of the nat-
ural resources, the environment and the ecosystems of our country can-
not be permitted to be eroded for private, commercial or any other use,
unless the courts find it necessary, in good faith, for the public good
and in public interest to encroach upon the said resources. Since these
resources being a gift of nature, they should be made freely available to
everyone irrespective of the status in life.
The court also traced the history of the doctrine and found its root
in Roman and English Law and widely quoted an erudite article of Prof
Joseph L. Sax, Professor of Law of the University of Michigan— propo-
nent of the Modern Public Trust Doctrine — “Public Trust Doctrine in
Natural Resource Law: Effective Judicial Intervention”’.
The court also distinguished between English and American law as
follows:

1. Mich L Rev, Vol. 68, Pt. 1, 473.

 ENVIRONMENTAL LAW [APP.d
494

r the English com-

It is no doubt correct that the public trust doctrine unde com-
such as navigation,
mon law extended only to certain traditional uses
expanded the
merce and fishing. But the American courts in recent cases have
eme Court
concept of the public trust doctrine. The observations of the Supr
ne
of California in National Audubon Society v. Superior Court of Alpi
ial
County? (popularly known as Mono Lake case) clearly show the judic
concern in protecting all ecologically important lands; for example, fresh
water, wetlands or riparian forests. The observations of the court in National
Audubon Society v. Superior Court of Alpine County’, to the effect that the
protection of ecological values is among the purposes of public trust, may
give rise to an argument that the ecology and the environment protection is a
relevant factor to determine which lands, waters or airs are protected by the
public trust doctrine.
The court referred many American cases to explain the contours of the
doctrine like Illinois Central Railroad Co. v. Illinois*.
It was also observed by the court that the doctrine was used by the
common-law court in narrower sense, but its application and the concept
of the public trust doctrine has been expanded by the American courts.
The courts in America has commended this doctrine in protecting all
ecologically important lands; for example, freshwater, wetlands or ripar-
ian forests, lands underlying non-navigable tidal areas.
The court also declared:
But in the absence of any legislation, the executive acting under the doctrine
of public trust cannot abdicate the natural resources and convert them into
private ownership, or for commercial use. The aesthetic use and the pristine
glory of the natural resources, the environment and the ecosystems of our
country cannot be permitted to be eroded for private, commercial or any
other use unless the courts find it necessary, in good faith, for the public good
and in public interest to encroach upon the said resources.
The court concluded that the lease granted by the government was vir-
tually in the breach of the trust held by the government as land allotted
to the Span Club was in the bed of river Beas. It also covered large area
of forest. The construction by the club has caused damage to ecology
of the area and eroded the land of the area. Therefore, they must be
held responsible to reverse the loss caused to the ecology in the light of
“polluter pays principle” and “precautionary principle” as explained in
Indian Council for Enviro-Legal Action v. Union of India’ and Vellore
2. (1983) 658 P 2d 709: 33 Cal 3d 419 (Cal SC).
3. (1983) 658 P 2d 709: 33 Cal 3d 419 (Cal SC).
4. 36 L Ed ror8: 146 US 387 (1892) (US Federal Supreme Court); Gould v. Greylock
Reservation Commission, (1966) 350 Mass 410; Priewe v. Wisconsin State Land
and Improvement Co., 93 Wis 534: 67 NW 918 (1896); Crawford County Lever and
Drainage Distt. No. 1, 182 Wis 404: 196 NW 874 (192.4); City of Milwaukee v. State,
193 Wis 423: 214 NW 820 (1927); State v. Public Service Commission, 275 Wis 112:
81 NW 2d 71 (1957).
S. (1996) 3 SCC 212: AIR 1996 SC 1446.
1] M.C. MEHTA v. KAMAL NATH $495

Citizens’ Welfare Forum v. Union of India’ respectively. The court reiter-

ated that the “precautionary principle” and the “polluter pays principle”
are essential features of sustainable development and is a part of the law
of the land.

Directions
The court, after examining various aspects of the case, concluded as
follows:
[ The public trust doctrine, as discussed by in this judgment, is a
part of the law of the land.
. The prior approval granted by the Indian Government, Ministry
of Environment and Forest by the letter dated 24 November 1993
and the lease deed dated 11 April 1994 in favour of the motel are
quashed. The lease granted to the motel by the said lease deed in
respect of 27 bighas and 12 biswas of area is cancelled and set
aside. The Himachal Pradesh Government shall take over the area
and restore it to its original natural conditions.
. The motel shall pay compensation by way of cost for the restitution
of the environment and ecology of the area. The pollution caused
by various constructions made by the motel in the riverbed and
the banks of river Beas has to be removed and reversed. We direct
NEERI through its Director to inspect the area, if necessary, and
give an assessment of the cost which is likely to be incurred for
reversing the damage caused by the motel to the environment and
ecology of the area. NEERI may take into consideration the report
by the Board in this respect.
The motel through its management shall show cause why pollution
fine in addition be not imposed on the motel.
The motel shall construct a boundary wall at a distance of not
more than four metres from the cluster of rooms (main building
of the motel) towards the river basin. The boundary wall shall be
on the area of the motel which is covered by the lease dated 29
September 1981. The motel shall not encroach/cover/utilise any
part of the river basin. The boundary wall shall separate the motel
building from the river basin. The river bank and the river basin
shall be left open for the public use.
The motel shall not discharge untreated effluents into the river. We
direct the Himachal Pradesh Pollution Control Board to inspect
the pollution control devices/treatment plants set up by the motel.
If the effluent/waste discharged by the motel is not conforming to

6. (1996) 5 SCC 647: AIR 1996 SC 2715.

496 ENVIRONMENTAL LAW

the prescribed standards, action in accordance with law be taken

against the motel.

Principle laid down

Public trust doctrine can be used as an instrument to protect and pre-
serve the natural environment. It has been accepted as the part of Indian
environmental law. It is the duty of the State to manage the common
natural resources and take stringent measures to defend them.

Aftermath
The court also found the State guilty of breach of public trust by allot-
ting the lease to the Span Club.’ The court after considering the report of
NEERI regarding the damage caused to the ecology of the area, imposed
“exemplary fine” of =10,00,000 on the Span Motels Pvt. Ltd. The court
fixed this amount keeping in view the undertaking given by them to
bear a fair share of “the project cost of ecological restoration” which
would be quite separate and apart from their liability for the exemplary
damages. And the question relating to the said quantum of liability for
damages based on the principle of “polluter pays”, as held by this court
against the Span Motels Pvt. Ltd. and undertaken by them, was left open
for the time being.
This case has been followed in a number of cases including Indian
Council for Enviro-Legal Action v. Union of India’, decided by the
Supreme Court, in which the court imposed a fine of 37.385 crores
towards the costs of remediation by erring industry. Here remediation
means restoration of the ecology of the area damaged by the H-acid
industry.

7. M.C. Mehta v. Kamal Nath, (2002) 3 SCC 653: AIR 2002

SC 1515.
8. (2011) 8 SCC 16r: (zorr) 4 SCC (Civ) 87. ’
 CasE No. 5
Rural Litigation and Entitlement Kendra,
Dehradun v. State of U.P., 1987 Supp SCC 487

[This is a very significant case in the history of the environment

protection movement in India as it was 1) the first case of its kind
involving the environment and ecological imbalance issue; 2) it rec-
ognised the epistolary jurisdiction of the court involving issues of
public importance; and 3) it required a balance to be maintained
between development and conservation of natural resources.]

Facts

By an order dated 14 July 1983, the Supreme Court directed that the let-
ter received from the Rural Litigation and Entitlement Kendra, Dehradun
dated 2 July 1983, along with accompanying affidavit, to be treated as a
writ petition. Thus, the court issued notices against the State of U.P. and
Collector of Dehradun.
The main allegation related to unauthorised and illegal mining oper-
ations carried on in the Mussoorie hills and the area around them,
adversely affecting the ecology of the area and leading to environmental
disturbance. Later on, several parties, mainly mining lessees number-
ing 100 got impleaded. By a letter dated July 1983, the Supreme Court
directed all fresh quarrying to be stopped and called upon the District
Magistrate and Superintendent of Police of Dehradun to strictly enforce
the order.
The Supreme Court quoted its order dated 12 March 1985', showing
the importance of the case, as follows:
This is the first case of its kind in the country involving issues relating to the
environment and ecological balance and the questions arising for considera-
tion are of grave significance not only to the people residing in the Mussoorie
hills range forming part of the Himalayas but also in their implications to
the welfare of the generality of people living in the country. It brings into
sharp focus the conflict between development and conservation and serves
to emphasise the need for reconciling the two in the larger interest of the
country.

a . Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431: AIR
1985 SC 652.
498 ENVIRONMENTAL LAW [APP.

The court appointed a committee under the chairmanship of Shri D.N.

Bhargav, Controller General of the Indian Bureau of Mines for the
purpose of inspecting all the mines with a view to determine whether
the safety standards laid down in the Mines Act, 1952 and the mines
rules were being observed or not; and whether there was any danger of
landslides on account of quarrying, particularly during monsoon sea-
sons; and if there were any hazards to individuals, cattle or agricultural
lands from mining operations. The committee gave its report in which it
directed closure of some mines and reported the defects in other mines.
This committee classified the mines in a, b and c categories. Regarding
category d, the committee observed that they were not at all suitable for
mining. On the basis of the report of the Bhargav Committee, the court
ordered the closure of the category d mines, and of the quarries located in
Sahasradhara block and placed in category b. Further, the court directed
the closure of the category a mines located within the municipal limits of
Mussoorie. Later the D. Bandhopadhyay Committee was constituted by
the court to examine the schemes of the mine lessees, keeping in view the
provisions of law as also the expediency of allowing mining operations.
The committee submitted its report to the court in April 1986.
The court considered the reports of the Bhargav and Bandhopadhyay
Committees. The question for consideration before the court was:
whether the Bandopadhyaya Committee has rightly rejected the claim of the
miner lessees and whether mining operations can be allowed to carry on
without, in any way, adversely affecting the environment or ecological bal-
ance or causing hazards to individuals, cattle and agricultural lands?
The court observed that the Himalayas are the source of perennial rivers
like Ganga, Yamuna and Brahmaputra, and also house herbs, shrubs
and plants. Doon valley is bounded by Himalayan and Shivalik ranges
and the Ganga, Yamuna rivers. The perennial streams and the ferti'e
soil have contributed not only to the growth of dense lush green fo -
ests, but have helped in the yields of Basmati rice and leechis. Moreover,
Mussoorie is known as the Queen of the Hills and Dehradun has turned
out to be an important place of tourist attraction, centre of education,
research and houses a defence complex.
At present the Valley is in danger because of erratic, irrational and uncon-
trolled quarrying of limestone. The landscape has been stripped bare of its
verdant cover. Green cover today is about ro per cent of the area while some
decades ago it was almost 70 per cent.
The limestone belt has acted as the aquifer—to hold and release water
perennially.... Reckless mining, careless disposal of the mines-debr
is and
random blasting operations have disturbed the natural water system
and the
supply of water both for drinking and irrigation has substantially
gone down.
There is a growing apprehension that if mining is carried on in
this process,
a stage will come when there would be dearth of water in the
entire belt....
r] RLE CASE 499

In these proceedings we came across 105 mining leases and these, as the
various reports have indicated, had direct environmental impact on the area.
It is said that the limestone deposits in this area are of high grade having up
to 99.8 per cent calcium carbonate.

Adverse effects of mining

The court observed:
Mining operations in these areas have led to cutting down of the forests.
Digging of limestone and allowing the waste to roll down or carried down by
rain-water to the lower levels has affected the villages and also the agricul-
tural lands located below the hills. The naturally formed streams have been
blocked. Blasting has disturbed the natural quiet, has shaken the soil, loos-
ened the rocky structures and disturbed the entire ecology of the area. For
removing the limestone quarried from the mine, roads have been laid and for
that purpose the hills have been interfered with; traffic hazard for the local
population, both animals and men, has increased.

Development versus Environment (Conservation)

The limestone quarries in this area are estimated to satisfy roughly three per
cent of the country’s demand for such raw material and we were told during
the hearing that the Tata Iron and Steel Company is the largest consumer of
this limestone for manufacture of a special kind of steel. At the present rate of
mining, the deposits are likely to last some 50 years. It is for the government
and the nation and not for the court to decide whether the deposits should
be exploited at the cost of ecology and environmental considerations or the
industrial requirements should be otherwise satisfied. It may be perhaps pos-
sible to exercise greater control and vigil over the operation and strike a
balance between preservation and utilisation that would indeed be a matter
for an expert body to examine and, on the basis of appropriate advice, gov-
ernment should take a policy decision and firmly implement the same.
Governments—both at the Centre and the State—must realise and
remain cognizant of the fact that the stake involved in the matter is large and
far reaching. The evil consequences would last long. Once that unwanted
situation sets in, amends or repairs would not be possible. The greenery of
India, as some doubt, may perish and the Thar desert may expand its limits.
Consciousness for environmental protection is of recent origin. The United
Nations Conference on World Environment held in Stockholm in June 1972
and the follow-up action thereafter is spreading the awareness. Over thou-
sands of years, man had been successfully exploiting the ecological system
for his sustenance but with the growth of population, the demand for land
has increased and forest growth has been and is being cut down and man
has started encroaching upon nature and its assets. Scientific developments
have made it possible and convenient for man to approach the places which
were hitherto beyond his ken. The consequences of such interference with
ecology and environment have now come to be realised. It is necessary that
500 ENVIRONMENTAL LAW

the Himalayas and the forest growth on the mountain range should be left
uninterfered with so that there may be sufficient quantity of rain. The top-
soil may be preserved without being eroded and the natural setting of the
area may remain intact. We had commended earlier to the State of U.P. as
also to the Union of India that afforestation activity may be carried out in
the whole valley and the hills. We have been told that such activity has been
undertaken. We are not oblivious of the fact that natural resources have got
to be tapped for the purposes of social development but one cannot forget at
the same time that tapping of resources have to be done with requisite atten-
tion and care so that ecology and environment may not be affected in any
serious way, there may not be any depletion of water resources and long-term
planning must be undertaken to preserve the national wealth. It is always
to be remembered that these are permanent assets of mankind and are not
intended to be exhausted in one generation.

Social obligation
We must place on record our appreciation of steps taken by the Rural
Litigation and Entitlement Kendra. But for this move, all that has happened
perhaps may not have come. Preservation of the environment and keeping the
ecological balance unaffected is a task which not only government’s but also
every citizen must undertake. It is a social obligation and let us remind every
Indian citizen that it is his fundamental duty as enshrined in Article 51-A(g)
of the Constitution.
The court also awarded = 10,000 to the Kendra for the cost of the pro-
ceedings and the State of U.P. was asked to pay this amount within one
month.
 CasE No. 6
A.P. Pollution Control Board v.
Prof. M.V. Nayudu, (1999) 2 SCC 718

M/s Surana Oils and Derivatives (India) Ltd., the respondent compa-
nies— incorporated in January 1995 for the production of B.S.S. Castor
oil derivations—applied for consent for establishment of the indus-
try to the Commissioner of Industries, who sent the application to the
Andhra Pradesh Government. The government wrote to the Ministry of
Industry, Indian Government who issued a letter of intent on 9 January
1996 to the companies. Issuance of licence was subject to various condi-
tions. Such conditions included a condition to obtain a certificate from
the State Pollution Control Board to the effect that measures envisaged
for pollution control and the equipment proposed to be installed met
their requirements. The application for consent was rejected by the A.P.
Pollution Control Board since the unit was a polluting industry and fell
under “red category”, and the proposed site was within a 10 km radius
of two lakes—Himayat Sagar and Osman Sagar—from where drinking
water was supplied to the cities of Hyderabad and Secunderabad. On
7 September 1996, the Collector of the area also granted permission for
conversion of the site to be used for non-agricultural purposes.
On 7 April 1997, the company applied to the A.P. Pollution Control
Board for seeking clearance to set up the industry under Section 25,
Water (Prevention and Control of Pollution) Act, 1974. The A.P. Pollution
Control Board rejected the application on 30 July 1997. Aggrieved by
the above letter of rejection, the respondent company appealed under
Section 28, Water (Prevention and Control of Pollution) Act, 1974 to the
appellate authority constituted by the State Government. The “Authority”
(M. Ranga Reddy, Retd. J) allowed the appeal of the company by an order
dated 5 January 1998. Prof M. Shantappa, a retired scientist and technol-
ogist (at that time Scientific Advisor to the T.N. Pollution Control Board),
gave an affidavit that the respondent had adopted eco-friendly technol-
ogy using all safeguards regarding pollution. The company also narrated
that it had used the technology obtained from the Indian Institution of
 APP.
5O2 ENVIRONMENTAL LAW |

Chemical Technology (IICT) of Hyderabad which is a premier institute

in the field. The IICT also issued a certificate that the industry would
not discharge any acidic effluents and solid wastes and that the solid
wastes will be collected in drums by mechanical process and sold. On the
basis of these reports, the “appellate authority” stated that “this industry
was not a polluting industry” and that the notification dated 1 February
1989 of the Ministry of Environment and Forests, Indian Government of
granting “red category” status to the said industry did not apply to the
catchment area of Himayat Sagar and Osman Sagar lakes. Accordingly,
the appellate authority directed the A.P. Pollution Control Board to give
its consent for establishment of the factory on such conditions which it
deemed fit. But before these orders dated 5 January 1998 were passed, a
PIL had already been filed stating that the orders were arbitrary.
The respondent company applied to the High Court for directing
the A.P. Pollution Control Board to give its consent as a consequence
of the order of the “appellate authority” dated 5 January 1998. And
the A.P. High Court issued the necessary directions to issue NOC to
the company.
The A.P. Pollution Control Board contended that the use of vegetable
oils including solvent-extracted oils and vanaspati hydrogenated vege-
table oils for industrial purpose is covered under “red category”, thus it
was a polluting industry and the company could not have started civil
works unless NOC was issued by the Board.
The A.P. Pollution Control Board went in appeal under Article 136 to
the Supreme Court against the orders of the High Court which allowed
the appeal against the orders of the appellate authority and directed the
Pollution Control Board (PCB) to grant consent to the industry.
The court narrated that the case involved the following two basic ques-
tions in view of Section 28, Water (Prevention and Control of Pollution)
Act, 1974:
1. The correctness of opinion on technological aspects expressed by
the PCB or other bodies whose opinions were placed before the
courts.
2. How the court can adjudicate upon the correctness of such techno-
logical and scientific opinions presented to the courts or in regard
to the efficacy of the technology proposed to be adopted by the
industry, or in regard to the need for alternative technology pro-
posed to be adopted by the industry?
The court dealt with these questions at length in the judgment and came
to the conclusion that the difficulty faced by environmental courts in
dealing with highly technological or scientific data appears to be a
global
phenomenon.
r| A.P. POLLUTION CONTROL BOARD v. PROF. M.V. NAYUDU 503

Uncertain nature of scientific opinion

The court came to the conclusion that “in the environment field, the
uncertainty of scientific opinions has created serious problems for the
courts”. Uncertainty becomes a problem when scientific knowledge is
institutionalised in policy-making or used as a basis for decision-making
by agencies and courts. Moreover, the court makes decisions based on
existing scientific knowledge. In addition, agency decision-making evi-
dence is generally presented in scientific form that cannot be easily tested.
Therefore, inadequacies of science result from identification of adverse
effect of hazard and working backwards to find the causes. Secondly,
clinical tests are performed, particularly where toxins are involved, on
animals and not on humans, i.e. they are based on animals studies or
short-term cell testing. Thirdly, conclusions based on epidemiological
studies are flawed by scientific inability to control or even accurately
assess past exposure of the subject. Moreover, these studies do not per-
mit scientists to isolate the effects of the substance of concern.
The above uncertainty of science in the environmental context
has led to the evolution of new legal theories and rules of evidence as
mentioned below.

Precautionary principle and new burden of proof

In Vellore Citizens’ Welfare Forum v. Union of India' (Vellore case),
Kuldip Singh J, after referring to the concept of “sustainable develop-
ment”, stated that the “precautionary principle”, the “polluter-pays
principle” and the special concept of “onus of proof” have now merged
and govern the law in our country too, as is clear from Articles 47, 48-A
and 51-A(g) of our Constitution and that in the various environmental
statutes, such as the Water (Prevention and Control of Pollution) Act,
1974 and other statutes, including the Environment (Protection) Act,
1986, these concepts are already implied. The learned judge declared that
these principles have now become part of our law. The relevant obser-
vation in the Vellore case in this behalf read as follows, “In view of the
abovementioned constitutional and statutory provisions we have no hes-
itation in holding that the Precautionary Principle and the Polluter Pays
Principle are part of the Environmental Law of the country.”
The learned judges also observed that the new concept which places
the burden of proof on the developer or industrialist who is proposing
to alter the status quo, has also become part of our environmental law.

1. (1996) 5 SCC 647: AIR 1996 SC 2755.

 504 ENVIRONMENTAL LAW [APP.

Precautionary principle replaces the assimilative

capacity principle
A basic shift in the approach to environmental protection occurred ini-
tially between 1972 and 1982. Earlier, the concept was based on the
“assimilative capacity” rule as revealed from Principle 6 of the Stockholm
Declaration of the UN Conference on Human Environment, 1972. The
said principle assumed that science could provide policy-makers with the
information and means necessary to avoid encroaching upon the capacity
of the environment to assimilate impacts, and it presumed that relevant
technical experience would be available when environmental harm was
predicted and there would be sufficient time to act in order to avoid such
harm. But in the r1th Principle of the UN General Assembly Resolution
on the World Charter for Nature, 1982, the emphasis shifted to the “pre-
cautionary principle”, and this was reiterated in the Rio Conference of
1992 in its Principle 15 which reads as follows:
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 proposing cost-effective measures to prevent
environmental degradation.
The principle of precaution involves the anticipation of environmental harm
and taking measures to avoid it or to choose the least environmentally harm-
ful activity. It is based on scientific uncertainty. Environmental protection
should not only aim at protecting health, property and economic interest but
also protect the environment for its own sake. Precautionary duties must not
only be triggered by the suspicion of concrete danger but also by (justified)
concern or risk potential. The precautionary principle was recommended by
the UNEP Governing Council (1989).

Special burden of proof in environmental cases

While inadequacies of science have led to the precautionary principle, the
said precautionary principle, in its turn, has led to the special principle
of burden of proof.
The precautionary principle suggests that where there is an identifiable risk
of serious or irreversible harm, including, for example, extinction of species,
widespread toxic pollution in major threats to essential ecological processes,
it may be appropriate to place the burden of proof on the person or
entity
proposing the activity that is potentially harmful to the environment.
The burden of proof is to be placed on those attempting to alter
the sta-
tus quo.
They are to discharge their burden by showing the absence
of a “rea-
sonable ecological or medical concern”. That is the required
standard of
proof.
1] A.P. POLLUTION CONTROL BOARD v. PROF. M.V. NAYUDU_ 505

Deficiencies in judicial and technical inputs in the appellate

system under the existing laws
Our present-day statutes fall short of a combination of judicial and scien-
tific needs. For example, the qualifications of the persons to be appointed
as appellate authorities under Section 28, Water (Prevention and Control
of Pollution) Act, 1974; Section 31, Air (Prevention and Control of
Pollution) Act, 1981; Rule 12 of the Hazardous Wastes (Management
and Handling) Rules, 1989 are not clearly spelled out.
Of paramount importance, in the establishment of environmental courts,
authorities and tribunals, is the need for providing adequate judicial and sci-
entific inputs rather than leave complicated disputes regarding environmental
pollution to officers drawn only from the executive.
It appears to us from what has been stated earlier that things are not quite
satisfactory and there is an urgent need to make appropriate amendments so
as to ensure that, at all times, the appellate authorities or tribunals consist
of judicial and also technical personnel well versed in environmental laws.
Such defects in the constitution of these bodies can certainly undermine the
very purpose of those legislations. We have already referred to the extreme
complexity of the scientific or technological issues that arise in environmen-
tal matters.
The court also suggested:
As stated earlier, the Government of India should, in our opinion, bring
about appropriate amendments in the environmental statutes, Rules and
notifications to ensure that in all environmental Courts, Tribunals and appel-
late authorities there is always a Judge of the rank of a High Court Judge
or a Supreme Court Judge—sitting or retired—and Scientist or group of
Scientists of high ranking and experience so as to help in a proper and fair
adjudication of disputes relating to environment and pollution.
1. Cases referred. —M.C. Mehta v. Union of India* (Shriram Foods
and Fertilisers Industries); and Vellore Citizens’ Welfare Forum v. Union
of India’.
Thus, the Water (Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act, 1984 should also be
amended accordingly.
The National Environment Appellate Authority Act, 1997 is very near
the ideals set by the Supreme Court. The court observed:
Under that statute, the appellate authority is to consist of a sitting or retired
Supreme Court Judge or a sitting or retired Chief Justice of a High Court and
a Vice-Chairman who has been an administrator of high rank with exper-
tise in technical aspects of problems relating to environment: and Technical
Members, not exceeding three, who have professional knowledge or practical

2. (1986) 2 SCC 176: 1986 SCC (Cri) 122.

3. (1996) 5 SCC 647: AIR 1996 SC 2715.
 [APP.
506 ENVIRONMENTAL LAW

, environmental manage-
experience in the areas pertaining to conservation
appellate authority
ment, land or planning and development. Appeals to this
environmental
are to be preferred by persons aggrieved by an order granting
processes, etc.
clearance in the areas in which any industries, operations or
are to be carried or carried subject to safeguards.
The government must urgently consider to amend the other related stat-
utes in the light of the above observation.

Duty of the present generation towards posterity: principle of

inter-generational equity: right of the future against the present
The principle of inter-generational equity is of recent origin. The 1972
Stockholm Declaration refers to it in Principles 1 and 2. In this context, the
environment is viewed more as a resource basis for the survival of the present
and future generations.
These principles are given below.

Principle 1
Man has the fundamental right to freedom, equality and adequate condi-
tions of life, in an environment of quality that permits a life of dignity and
well-being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations....

Principle 2
The natural resources of the earth, including the air, water, lands, flora and
fauna and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through careful
planning or management, as appropriate.
Several international Conventions and treaties have recognised the above
principles and in fact several imaginative proposals have been submit-
ted including the locus standi of individuals or groups to take action as
representatives of future generations, or appointing ombudsman to take
care of the rights of the future against the present.

Environmental concerns and human rights

“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 lib-
erty. While environmental aspects concern “life”, human rights aspects
concern “liberty”. In our view, in the context of emerging jurisprudence
1| A.P. POLLUTION CONTROL BOARD v. PROF. M.V. NAYUDU_ 507

relating to environmental matters, as is the case in matters relating to

human rights, it is the duty “of this court to render justice by taking all
aspects into consideration. With a view to ensure that there is neither
danger to environment nor to ecology and at the same time ensuring
sustainable development, this court, in our view, can refer scientific and
technical aspects for investigation and opinion to expert bodies such as
the “appellate authority” under the National Environment Appellate
Authority Act, 1997. The said authority comprises a retired judge of the
Supreme Court and members having technical expertise in environmen-
tal matters, whose investigation, analysis of facts and opinions on objec-
tions raised by parties could give adequate help to this court or the High
Courts and also the needed reassurance. Any opinions rendered by the
said authority would of course be subject to the approval of this court.
On the analogy of Paramjit Kaur v. State of Punjab*, such a procedure, in
our opinion, is perfectly within the bounds of law. Such a procedure, in
our view, can be adopted in matters arising in this court under Article 32
or under Article 136 or arising before the High Courts under Article 226
of the Indian Constitution.
Such an authority shall also have powers for obtaining data or tech-
nical advice, as it may deem necessary from any source. The “authority”
was requested to give its opinion within a period of three months from
the date of the order.

Control Board
4. (1999) 2 SCC 131: 1999 SCC (Cri) 109, referred to in A.P. Pollution
v. Prof. M.V. Nayudu, (1999) 2 SCC 718: AIR 1999 SC 812.
 CASE No. 7

A.P. Pollution Control Board (II) v.

Prof. M.V. Nayudu, (2001) 2 SCC 62

As the case was referred to the National Environment Appellate

Authority (NEAA) for its opinion, the authority affirmed that the indus-
try in question was hazardous. The industry was to use among 12 major
items, 10 nickel-based catalysts per day and stored raw material which
was a serious health hazard, highly inflammable and reactive at elevated
temperatures and pressure. It was also found that the solid and liquid
effluents could reach the lakes through seepage. The factory could not be
located in the catchment area because run-off due to rain would carry
hazardous material along the surface through seepage. As to the likeli-
hood of the industry affecting the sensitive catchment area, the NEAA
concluded that the “establishment of any chemical industry carries with
it the imminent danger of the chemicals or chemical effluents polluting
the water of Himayat Sagar and Osman Sagar”. Therefore, the Supreme
Court observed that in the light of the reports of the expert bodies, it
was certainly not a fit case for directing grant of NOC by the Pollution
Control Board (PCB). Further, the Board could not be directed to suggest
safeguards as there was every likelihood that the safeguards could fail
either due to accident, as stated in the report, or due to human error.
The court observed:
1. Under Section 25(1), Water (Prevention and Control of Pollution)
Act, 1974, the prohibition extends to “establishment” of the indus-
try or taking steps for that process and before consent of the PCB
is obtained, neither can an industry be established nor can any step
be taken to establish it.
2. The industry could not seek an NOC after violating the policy
decision of the government. The appellate authority erred in think-
ing that because of the approval of the plan by the panchayat, or
conversion of land use by the Collector, or grant of letter of intent
by the Central Government, a case for applying the principle of
“promissory estoppel” applied to the facts of this case.
 A.P. POLLUTION CONTROL BOARD (II) v. PROF. M.V. NAYUDU_ 509

. The concept of a healthy environment as a part of the fundamental

right to life, developedby the Supreme Court, is finding acceptance
in various countries side by side with the right to development.
. The State Government by issuing notifications dated 3x March
1994 and 8 March 1996 prohibited the location of industries
within a to km radius of the two reservoirs with reference to the
notification of the Central Government dated 27 September 1988
referring to such an industry as a “red category” industry under
Section 3(2) (v), Environment (Protection) Act, 1986.
While such prohibition was in force, the State Government could
not obviously grant any exemption to a specified industry located
within the prohibited area. Nor was it permissible for the State
to direct the Appellate Board to prescribe conditions for grant of
NOC.
. The fundamental objectives of Sections 2(e), 2(k), 17 and 18, Water
(Prevention and Control of Pollution) Act, 1974 is to provide clean
drinking water to citizens.
Section 19, Water (Prevention and Control of Pollution) Act, which
gives power to the State Government to restrict the application of
the Act to certain area, does not enable the State to grant exemp-
tion to a particular industry within the area prohibited for location
of polluting industry.
Exercise of such power in favour of a particular industry must
be treated as arbitrary and contrary to public interest and in vio-
lation of the right to clean water under Article 21 of the Indian
Constitution. Thus, the G.O. No. 153 dated 3 July 1997 exempt-
ing the respondent industry from G.O. dated 8 March 1996 was
arbitrary.
. It was found that the government before passing exemption order
in favour of a hazardous and potentially dangerous industry must
keep in mind the fate of lakhs of people living in nearby areas.
Only assurance of the industry for taking care of likely adverse
effects cannot be relied upon, “nor an assurance that these hazard-
ous substances would effectively be removed without spillage. It is
not humanly possible for any department to keep track whether the
pollutants are spilled over”. This is exactly where the “precaution-
ary principle” comes into play as the chance of an accident within
such proximity of the reservoirs cannot be ruled out.
. Jagannadha Rao J also suggested that
the law commission should review the environment laws and the need
for constitution of environmental courts with experts in environmental
law, in addition to judicial members in the light of experience in other
countries, be given top priority.
JrIO ENVIRONMENTAL LAW

Chus, the Supreme Court declared that G.O. No. 153 dated 3 July 1997
granting exemption must be held to be without statutory backing and
wholly arbitrary and violative of Article 21. As a result of which, the
judgment of the High Court and order of the appellate authority under
Section 28, Water (Prevention and Control of Pollution) Act were set
aside and the order of the Appellant Board refusing permission to the
industry under Section 25, Water (Prevention and Control of Pollution)
Act was restored.
 CASE No. 8
Church of God (Full Gospel) in India v. K.K.R.M.C.
Welfare Association, (2000) 7 SCC 282

[The case relates to noise pollution and right to religion provided

under Articles 25, 26 of the Indian Constitution.]

Facts

In this case, the appellant, Church of God (Full Gospel) in India was
located at K.K.R.M. Colony in Chennai. It has a prayer hall and is pro-
vided with musical instruments such as drum set, triple banjo, guitar,
etc. The respondent (K.K.R.M. Colony Welfare Association) made a
complaint on 15 May 1996 to the Tamil Nadu Pollution Control Board
stating that the prayers in the Church were recited by using loudspeak-
ers, drums and other sound producing instruments which caused noise
pollution, thereby disturbing and causing nuisance to the normal day
life of the residents of the said colony. Letter of grievance was also given
to the Superintendent of Police, Chennai to take action. In 1996, the
respondent filed Criminal O.P. in the Madras High Court to take action.
The learned counsel for the Church contended that the petition was filed
“with an oblique motive in order to prevent a religious minority insti-
tution from pursuing its religious activity”. It was submitted that noise
pollution was due to plying of vehicles and not due to use of loudspeak-
ers. The learned Single Judge, referring the decision of the High Court
in M.S. Appa Rao v. Govt. of T.N.', directed the Joint Chief Engineer of
the Board and Superintendent of Police to take necessary steps to bring
down the noise level to the permitted extent by taking action against the
vehicles and also by making the Church to keep their speakers at a lower
level. If the noise created by the Church exceeds the permissible decibels,
then it has to be abated. The action of the Welfare Association was found
not malicious.
Aggrieved by the said order, the Church went in appeal by special
leave petition to the Indian Supreme Court. The counsel, appearing for
the appellant contended that 1) as per survey reports of the Pollution
Control Board, the noise is because of vehicular traffic; 2) the High Court

1. 1995 AIHC 4168: (1995) 1 LW 319 (Mad).

512 ENVIRONMENTAL LAW [APP.

has overlooked the right to profess and practice Christianity as provided

under Articles 25 and 26 of the Indian Constitution which cannot be dis-
lodged by directing the authorities to have a check on the appellant; and
3) the judgment referred to by the learned judge (Appa Rao case, 1995)
did not empower the authority to interfere with the religious practices of
any community.
Special leave was granted by the Supreme Court.

Basic question involved

The question involved was that in a country having multiple religious
and numerous communities or seats, whether a particular community or
sect of that community can claim right to add to noise pollution on the
ground of religion? Whether beating of drums or reciting of prayers by
use of microphones and loudspeakers so as to disturb peace and tranquil-
lity of neighbourhood should be permitted?
The Supreme Court declared:
undisputedly no religion prescribes that prayers should be performed by dis-
turbing the peace of others, nor does it preach that they should be through
voice-amplifiers or beating of drums...in a civilised society in the name of
religion, activities which disturb old or infirm person, students, or children
having their sleep in early hours or during day time... cannot be permitted.
Referring Acharya Maharajshri Narendra Prasadji v. State of Gujarat’,
the court quoted, “no right in an organised society can be absolute.
Enjoyment of one’s rights must be consistent with the enjoyment of rights
also by others”. Therefore, the right to religion under Articles 25 and
26 of the Constitution are subject to public order, morality and health.
Moreover, noise is a danger to health. It may cause interruption to sleep,
affect communication, loss of efficiency, hearing loss, high blood pres-
sure, depression, irritability, fatigue, distraction, gastrointestinal prob-
lems, allergy, mental stress and annoyance, etc. This also affect animals
alike. The extent of damage depends on the duration and intensity of
noise.
It was also made clear by the court that due to urbanisation or indus-
trialisation, the noise pollution may be exceeding permissible limits, but
that cannot be a ground for permitting others to increase the same by
beating drums or use of voice amplifiers.
The courts based its judgments on the permissible limits provided
by the Madras Town Nuisance Act, 1889 and the Noise Pollution
(Regulation and Control) Rules, 2000 framed under the Environment
(Protection) Act, 1986 by the Central Government. According to Rule
3

2. (1975) 1 SCC 11: AIR 1974 SC 2098.

1] CHURCH OF GOD v. K.K.R.M.C 513

of the Noise Pollution Rules, 2000, following are the “ambient air qual-
ity standards in respect of noise”:

TABLE 1 Limits in db(A) leq.

Area code Category of area/zone Day time Night time

or wrt © A Industrial area 75 70
© opie or (a ERE eae AA RONDE KyeRTRe ca
ey ee ae ee prions midi ceserinc tgSe Ee
is vas a ee Aber ee deat sel aiuaat

Rule 5 prohibits the use of loudspeaker/public address system except after

obtaining written permission from the authority, and the loudspeakers
or public address system shall not be used at night (between 10.00 p.m.
and 6.00 a.m.) except in closed premises (auditorium, conference rooms,
banquet hall, community hall).
The court emphasised that the Rules of 2000 and directions of the
courts issued on various occasion must be implemented properly. The
public and the authorities must be made aware of rules and their duty to
implement the same.
 CasE No. 9

T.N. Godavarman Thirumulpad v. Union of India,

(1997) 2 SCC 267: AIR 1997 SC 1228
[This case is a watershed in the history of conservation of the
forests in India. In this case, the Supreme Court took the felling and
cutting of the trees as serious threat to the vegetation cover of India
and came heavily on the violators of law. Later on this case became
the basis of judicial pronouncements relating to preservation and
protection of the forests in India. Under this heading more than 120
pronouncements have been made by the Supreme Court.]

In this case various writ petitions were jointly heard and decided by the
court. It included cases relating to forests in North-Eastern hill States;
wood based industries in forest areas of the State of Assam, Arunachal
Pradesh and Meghalaya, Jammu and Kashmir; forests of Tamil Nadu
(Janmam areas), Himachal Pradesh, Rajasthan and West Bengal; run-
ning of unlicensed sawmills; veneer and plywood industries in the State
of Maharashtra and Uttar Pradesh.
This case is related to Sections 1 and 2(2), Forest Conservation Act,
1980 and Section 35, Wildlife (Protection) Act, 1972. Main issue involved
in this case was the prevailing non-forest activities in forest area and the
examination of all aspects of the Indian National Forest Policy, 1988.
Section 2, Forest (Conservation) Act, 1980 is as follows:
2. Restriction on the de-reservation of forests or use of forest land for
non-forest purpose.— Notwithstanding anything contained in any other law
for the time being in force in a State, no State Government or other authority
shall make, except with the prior approval of the Central Government, any
order directing—
(i) that any reserved forest (within the meaning of the expression
“reserved forest” in any law for the time being in force in that State)
or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any
non-forest purpose;
(71) that any forest land or any portion thereof may be assigned by way
of lease or otherwise to any private person or to any authority, cor-
poration, agency or any other organisation not owned, managed or
controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees
which have grown naturally in that land or portion, for the purpose
of using it for reforestation.
 T.N. GODAVARMAN THIRUMULPAD v. UNION OF INDIA 515

Explanation—For the purpose of this section, ‘non-forest purpose’

means the breaking up or clearing of any forest land or portion thereof
for—
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing
plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation,
but does not include any work relating or ancillary to conservation, devel-
opment and management of forests and wild-life, namely, the establishment
of check-posts, fire lines, wireless communications and construction of fenc-
ing, bridges and culverts, dams, waterholes, trench marks, boundary marks,
pipelines or other like purposes.
It was declared that any specific orders for de-reservation or diver-
sion of forest areas in connection with any project issued by the State
Government prior to 25 October 1980 need not be referred to the Central
Government. Beside the installation of saw machines and construction
of residential houses and hotels, boulders, bajri, stone, etc., in the river-
beds located within any forest area would constitute a part of that for-
est land and their removal would require prior approval of the Central
Government under this Act. While defining the “forest”, the court
observed:
the word ‘forest’? must be understood according to its dictionary meaning.
This description cover all statutorily recognised forests, whether designated
as reserved, protected or otherwise for the purpose of Section 2(z) of the Forest
Conservation Act. The term ‘forest land’, occurring in Section 2, will not
only include ‘forest’ as understood in the dictionary sense, but also any area
recorded as forest in the government record irrespective of the ownership.
The court declared:
we consider it necessary to reiterate this settled position emerging from the
decisions of this Court to dispel the doubt, if any, in the perception of any
State Government or authority. This has become necessary also because of
the stand taken on behalf of the State of Rajasthan, even at this late stage,
relating to permissions granted for mining in such areas which is clearly con-
trary to the decisions of this court. It is reasonable to assume that any State
Government which has failed to appreciate the correct position in law so far,
will forthwith correct its stance and take the necessary remedial measures
without any further delay.
Thus, prior approval of the Central Government is also essential for min-
ing activities in forest area. It quoted with approval its earlier decisions
in Rural Litigation and Entitlement Kendra v. State of U.P.', Supreme
Court Monitoring Committee v. Mussoorie Dehradun Development
Authority? and State of Bihar v. Banshi Ram Modi’. The court held:

1. 1989 Supp (1) SCC 504: AIR 1988 SC 2187.

2. (1997) 11 SCC 605.
3. (1985) 3 SCC 643: AIR 1985 SC 814.
516 ENVIRONMENTAL LAW [APP.

The felling of trees in all forests is to remain suspended except in accordance

with the working plans of the State Governments, as approved by the Central
Government. In the absence of any working plan in any particular State, such
as Arunachal Pradesh, where the permit system exists, the felling under the
permits can be done only by the Forest Department of the State Government
or the State Forest Corporation.
There shall be a complete ban on the movement of cut trees and timber
from any of the seven North-Eastern States to any other State of the coun-
try either by rail, road or waterways. The Indian Railways and the State
Governments are directed to take all measures necessary to ensure strict
compliance of this direction. This ban will not apply to the movement of
certified timber required for defence or other Government purposes. This
ban will also not affect felling in any private plantation comprising of trees
planted in any area which is not a forest.
The court also directed all the States to constitute within one month an
Expert Committee to
1. identify areas which are “forests”, irrespective of whether they are
so notified, recognised or classified under any law, and irrespective
of the ownership of the land of such forest;
2. identify areas which were earlier forests but stand degraded,
denuded or cleared; and
3. identify areas covered by plantation trees belonging to the govern-
ment and those belonging to private persons.
The court further directed that each State Government should constitute
within one month an Expert Committee to assess
1. the sustainable capacity of the forests of the State qua sawmills and
timber-based industry;
2. the number of existing sawmills which can safely be sustained in
the State; and
3. the optimum distance from the forest, qua that State, at which the
sawmill should be located.
Each State Government was directed to file its report, within two months,
regarding
1. the number of sawmills, veneer and plywood mills actually operat-
ing within the State, with particulars of their real ownership;
2. the licensed and actual capacity of these mills for stock and sawing;
3. their proximity to the nearest forest; and
4. their source of timber.
The court also ordered for the closure of all sawmills and other wood-
based industry working in forest area, and the workers employed in such
units will continue to be paid their full emoluments due and shall
not be
retrenched or removed from service for this reason. The railway autho
r-
ities were also directed to find out the alternate of wooden sleepers
for
1] T.N. GODAVARMAN THIRUMULPAD vy. UNION OF INDIA 517

laying tracks and stop immediately using wood for the said purpose.
The court permitted to remove already fell trees. Therefore, complete
ban on cutting and felling, without the prior approval of the Central
Government, was imposed by the court.
In this series of cases, recently decided case is Noida Memorial Complex
Near Okhla Bird Sanctuary, re* (popularly known as Construction of
Park at Noida near Okhla Bird Sanctuary, re). In this case, the court
declared that if the land or project site is not a forest land, it does not
require prior approval of the Central Government for felling or cutting of
the trees. But for the determination of land as a forest land or otherwise,
there must be identification—and for this purpose acceptable evidence/
proof including satellite image showing forest cover may be used. In this
case, the revenue records corroborated by land acquisition proceedings
revealed that land was not forest land. Such revenue records were relia-
ble because they were much prior to the project alleged to have diverted
forest land.
While defining the term “forest”, the court concluded that any defini-
tion of forest, howsoever wide, relates to a context and cannot be applied
absolutely, universally and totally independent of context. Though man-
made forest, with passage of time, may acquire forest-like character and
become forest, but they cannot be treated as forests. For example, plant-
ing of trees in agricultural/non-forest land for the purpose of creating
urban park and not for purpose of afforestation, if allowed to stand and
grow for about 12-14 years and later on, they are cut down to make the
area clear for alleged project on forest land. Such plantation cannot be
classified as forest land, or deemed forest, or forest-like area. Sometimes,
a man made forest may equally be a forest as a naturally grown one,
but it cannot be made universally applicable. For such projects environ-
mental impact assessment (EIA) is also necessary as per EIA notification
dated 14 September 2006.
With reference to court’s order dated 3 December 2010, the Central
Government has issued “Guidelines for the Declaration of Eco-Sensitive
Zones around National Parks and Wildlife Sanctuaries” on 9 February
2011. These guidelines were made use of in this case.

Apology is no defence for contemnor

In T.N. Godavarman Thirumulpad (102) v. Ashoka Khot* (decided on
to May 2006), the court declined to accept the apology tendered by the
Minister of State of Maharashtra and the Principal Secretary, Department
of Forest and Environment, who permitted to install sawmill in forest

4. (2011) 1 SCC 744.

5. (2006) 5 SCC 1: AIR 2006 SC 2007.
518 ENVIRONMENTAL LAW

area in the flagrant violation of the orders of the Supreme Court in this
case. It was also observed by the court that
every one, whether individually or collectively, is unquestionably under the
supremacy of law. Whoever he may be, however high he is, he is under the
law. The law is supreme. Disobedience of the orders of Supreme Court strikes
at the very root of the rule of law on which the judicial system rests. Judiciary
is the guardian of the rule of law. And that apology is an act of contrition.
Unless apology is offered at the earliest opportunity and in good grace, the
apology is shorn of penitence and hence, it is liable to be rejected. If the apol-
ogy is offered at the time when the contemnor finds that the court is going
to impose punishment, it ceases to be an apology and becomes an act of a
cringing coward.
The court took note of the following observations of this court in L.D.
Jaikwal v. State of U.P.°:
We are sorry to say we cannot subscribe to the ‘slap-say sorry-and forget’
school of thought in administration of contempt jurisprudence. Saying ‘sorry’
does not make the slipper taken the slap smart less upon the said hypocritical
word being uttered. Apology shall not be paper apology and expression of
sorrow should come from the heart and not from the pen. For it is one thing
to ‘say’ sorry —it is another to ‘feel’ sorry.
The court rejected the apology tendered at a late stage and found that
there was “men-rea” at “writ large”; and declared that
this is a case where not only right from the beginning attempt has been made
to overreach the orders of this court but also to draw red-herrings. Still worse
is the accepted position of inserting a note in the official file with oblique
motives. That makes the situation worse. In this case, the contemners deserve
severe punishment. This will set an example for those who have propensity
of disregarding the court’s orders because of their money power, social status
or posts held.
The two contemners were sentenced to a month’s simple imprisonment
each.

6. (1984) 3 SCC 405: 1984 SCC (Cri) gar.

 APPENDIX 2
National Environment Policy, 2006!

A diverse developing society such as ours, provides numerous challenges

in the economic, social, political, cultural, and environmental arenas. All
of these coalesce in the dominant imperative of alleviation of mass pov-
erty, reckoned in the multiple dimensions of livelihood security, health
care, education, empowerment of the disadvantaged, and elimination of
gender disparities.
The present national policies for environmental management are con-
tained in the National Forest Policy, 1988; the National Conservation
Strategy and Policy Statement on Environment and Development, 1992;
and the Policy Statement on Abatement of Pollution, 1992. Some sector
policies such as National Agriculture Policy, 2000; National Population
Policy, 2000; and National Water Policy, 2002 have also contributed
towards environmental management. All of these policies have recog-
nised the need for sustainable development in their specific contexts and
formulated necessary strategies to give effect to such recognition. The
National Environment Policy (NEP) seeks to extend the coverage, and
fill in gaps that still exist, in light of present knowledge and accumulated
experience. It does not displace, but builds on the earlier policies.
Across the political spectrum of the country there has been recogni-
tion of the vital role natural resources play in providing livelihoods, and
securing life support ecological services. In this perspective, a need for a
comprehensive policy statement has been evident for some time in order
to infuse a common approach to the various sectoral and cross-sectoral,
including fiscal, approaches to environmental management. As our devel-
opment challenges have evolved and our understanding of the centrality
of environmental concerns in development has sharpened, there is also a
need to review the earlier objectives, policy instruments, and strategies.
This dynamic requires an evolving and flexible policy framework,
with a built in system for monitoring and review, and where necessary,

1. As approved by the Union Cabinet, Government of India on 18-5-2006.

520 ENVIRONMENTAL LAW [APP.

revision. Sustainable development concerns in the sense of enhancement

of human well being, broadly conceived, are a recurring theme in India’s
development philosophy. The present-day consensus reflects three foun-
dational aspirations: 1) human beings should be able to enjoy a decent
quality of life; 2) humanity should become capable of respecting the
finiteness of the biosphere; and 3) neither the aspiration for the good life,
nor the recognition of biophysical limits should preclude the search for
greater justice in the world. For this to occur, there is a need for balance
and harmony between economic, social and environmental needs of the
country.2 India also plays an important role in several significant inter-
national initiatives concerned with the environment. It is party to the key
multilateral agreements, and recognises the interdependencies among,
and transboundary character of, several environmental problems. The
NEP is also intended to be a statement of India’s commitment to making
a positive contribution to international efforts.
The NEP is a response to our national commitment to a clean envi-
ronment, mandated in the Constitution in Articles 48-A and 51-A(g),
strengthened by judicial interpretation of Article 21. It is recognised
that maintaining a healthy environment is not the State’s responsibil-
ity alone, but also that of every citizen. A spirit of partnership should
thus be realised throughout the spectrum of environmental management
in the country. While the State must galvanise its efforts, there should
also be recognition by each individual—natural or institutional, of its
responsibility towards maintaining and enhancing the quality of the
environment.
The NEP has been motivated by the above considerations and is
intended to mainstream environmental concerns in all development
activities. It briefly describes the key environmental challenges currently
and prospectively the country is facing, the objectives of environment
policy, normative principles underlying policy action, strategic themes
for intervention, broad indications of the legislative and institutional
development needed to accomplish the strategic themes, and mechanisms
for implementation and review. It has been prepared through a process of
extensive consultation with experts, as well as diverse stakeholders, and
this process is also documented.
The NEP is intended to be a guide to action in regulatory reform,
programmes and projects for environmental conservation; and review
and enactment of legislation by agencies of the Central, State, and local
governments. The dominant theme of this policy is that while conser-
vation of environmental resources is necessary to secure livelihood and
well-being of all, the most secure basis for conservation is to ensure that
people dependent on particular resources obtain better livelihoods from

2. The Five-Year Plan 2002-2007, Vol. I, Planning Commission of India.

2] NATIONAL ENVIRONMENT POLICY, 2006 521

the fact of conservation, than from degradation of the resources. The

policy also seeks to stimulate partnerships of different stakeholders, i.e.
public agencies, local communities, academic and scientific institutions,
the investment community, and international development partners, in
harnessing their respective resources and strengths for environmental
management.

KEY ENVIRONMENTAL CHALLENGES:

CAUSES AND IMPACTS
The key environmental challenges that the country faces relate to the
nexus of environmental degradation with poverty in its many dimen-
sions, and economic growth. These challenges are intrinsically connected
with the state of environmental resources, such as land, water, air, and
their flora and fauna. The proximate drivers of environmental degra-
dation are population growth, inappropriate technology and consump-
tion choices, and poverty, leading to changes in relations between people
and ecosystems, and development activities such as intensive agriculture,
polluting industry, and unplanned urbanisation. However, these factors
give rise to environmental degradation only through deeper causal link-
ages, in particular, institutional failures, resulting in lack of clarity or
enforcement of rights of access and use of environmental resources, pol-
icies which provide disincentives for environmental conservation (and
which may have origins in the fiscal regime), market failures (which may
be linked to shortcomings in the regulatory regimes), and governance
constraints.
Environmental degradation is a major causal factor in enhancing and
perpetuating poverty, particularly among the rural poor, when such deg-
radation impacts soil fertility, quantity and quality of water, air quality,
forests, wildlife and fisheries. The dependence of the rural poor, in par-
ticular, tribal societies, on their natural resources, especially biodiver-
sity, is self-evident. Women in particular face greater adverse impacts
of degradation of natural resources, being directly responsible for their
collection and use, but rarely for their management. The commitment of
time and effort in collection of these resources has a direct impact on the
capacity of rural women to devote time to raising and educating children,
enhancing their earning skills, or participating in gainful livelihoods.
The poor are also more vulnerable to loss of resilience in ecosystems.’
Large reductions in resilience may mean that the ecosystems, on which

3. Resilience is the capacity of an ecosystem to recover from shocks and surprises,

whether man-made or natural. If a system losses resilience, it may be rapidly trans-
formed to a wholly different (and unwelcome) state when subjected to even a tempo-
rary perturbation.
 [APP.
522 ENVIRONMENTAL LAW

of the envi-
livelihoods are based, break down, causing distress. The loss
being
ronmental resource base can result in certain groups of people
th.
made destitute, even if overall, the economy shows strong grow
Further, urban environmental degradation, through lack of (or inappro-
priate) waste treatment and sanitation, industry and transport related
pollution, adversely impacts air, water, and soil quality, and differen-
tially impacts the health of the urban poor. This, in turn, affects their
capability to seek and retain employment, attend school, and enhances
gender inequalities’, all of which perpetuate poverty. Poverty itself can
accentuate environmental degradation, given that institutional? failures
persist. For the poor, several environmental resources are complementary
in production and consumption to other commodities (e.g., water in rela-
tion to agricultura! production, fuel wood in relation to consumption of
food), while a number of environmental resources are a source of income
or food (e.g., fisheries, non-timber forest produce). This is frequently a
source of cumulative causation, where poverty, gender inequalities, and
environmental degradation mutually reinforce each other. Poverty and
environmental degradation are also reinforced by, and linked to popula-
tion growth, which in turn depends on a complex interaction of diverse
causal factors and stages of development. The social and economic con-
text of population growth has been detailed in the National Population
Policy, 2000, which recognises stabilisation of population as a necessary
condition for sustainable development.
Economic growth, in its turn, bears a dichotomous relationship to
environmental degradation. On one hand, growth may result in “exces-
sive” environmental degradation through use of natural resources and
generation of pollution aggravated by institutional failures. If impacts
on the environmental resource base are neglected, an incorrect picture is
obtained from conventional monetary estimates of national income. On
the other hand, economic growth permits improvement in environmental
quality by making available the necessary resources for environmental
investments, and generating societal pressures for improved environ-
mental behaviour, and institutional and policy change. Unsustainable
consumption patterns, particularly in industrialised countries, also have
serious adverse impacts on the environment, both local, and global. The
global impacts are largely manifest in developing countries, and further
accentuate poverty.
It is increasingly evident that poor environmental quality has adversely
affected human health. Environmental factors are estimated as being

4. For example, as money for medicai treatment is preferentially allocated within

household towards treatment of wage-earner men folk.
5. Which may relate to both formal institution such as legal rights over resources, and
traditional, informal institution, such as community norms of resources management
2] NATIONAL ENVIRONMENT POLICY, 2006 523

responsible in some cases for nearly 20 per cent of the burden of disease
in India, and a number of environment-health factors are closely linked
with dimensions of poverty (e.g., malnutrition, lack of access to clean
energy and water). It has been shown that interventions such as reducing
indoor air pollution, protecting sources of safe drinking water, protect-
ing soil from contamination, improved sanitation measures, and better
public health governance, offer tremendous opportunities in reducing the
incidence of a number of critical health problems. It is also evident that
these environmental protection measures would be difficult to accom-
plish without extensive awareness raising and education on good prac-
tices with respect to public and private behaviour.
Institutional failures, referring to unclear or insufficiently enforced
rights of access to, and use of, environmental resources, result in envi-
ronmental degradation because third parties primarily experience
impacts of such degradation, without cost to the persons responsible for
the damage. Such rights, both communities based and individual, are
critical institutions mediating the relationships between humans and the
use of the environment. Traditionally, village common water sources,
grazing grounds, local forests, fisheries, etc. have been protected by local
communities from over exploitation through various norms, which may
include penalties for disallowed behaviour. These norms, may, however,
be degraded through the very process of development, including urbani-
sation, and population growth resulting from sharp reduction in mortal-
ity, and also through State actions which may create conditions for the
strengthening of individual over communitarian rights, and in doing so
allow market forces to press for change that has adverse environmental
implications. If such access to the community resources under weakened
norms continues, the resources would be degraded, and the livelihoods
of the community would suffer. Policy failures can emerge from vari-
ous sources, including the use of fiscal instruments, such as explicit and
implicit subsidies for the use of various resources, which provide incen-
tives for excessive use of natural resources. Inappropriate policy failures
can also lead to changes in commonly managed systems, with adverse
environmental outcomes.
Another major set of challenges arises from emerging global environ-
mental concerns such as climate change, stratospheric ozone depletion,
and biodiversity loss. The key is to operationalise the principle of com-
mon but differentiated responsibility of countries in relation to these
problems. Multilateral regimes and programmes responding to these
global environmental issues must not adversely impact the development
opportunities of developing countries. Further, the sharing of global nat-
ural resources must proceed only on the basis of equal sharing per capita
across all countries.
 [APP.
524 ENVIRONMENTAL LAW

OBJECTIVES OF THE NATIONAL

ENVIRONMENT POLICY
The principal objectives of this policy are enumerated below. These
objectives relate to current perceptions of key environmental challenges.
These may, accordingly, evolve over time:

1. Conservation of critical environmental resource— s.To protect and

conserve critical ecological systems and resources, and invaluable natu-
ral and man-made heritage, which are essential for life support, liveli-
hoods, economic growth and a broad conception of human well-being.
2. Intra-generational equity: livelibood security for the poor.—o
ensure equitable access to environmental resources and quality for all
sections of society, and in particular, to ensure that poor communities,
which are most dependent on environmental resources for their liveli-
hoods, are assured secure access to these resources.
3. Inter-generational equity.—To ensure judicious use of environ-
mental resources to meet the needs and aspirations of the present and
future generations.
4. Integration of environmental concerns in economic and social
development.—To integrate environmental concerns into policies,
plans, programmes, and projects for economic and social development.
5. Efficiency in environmental resource use.— To ensure efficient use
of environmental resources in the sense of reduction in their use per unit
of economic output, to minimise adverse environmental impacts.
6. Environmental governance.— To apply the principles of good goy-
ernance (transparency, rationality, accountability, reduction in time and
costs, participation, and regulatory independence) to the management
and regulation of use of environmental resources.
7. Enhancement of resources for environmental conservation.—To
ensure higher resource flows, comprising finance, technology, manage-
ment skills, traditional knowledge, and social capital, for environmental
conservation through mutually beneficial multi-stakeholder partnerships
between local communities, public agencies, the academic and research
community, investors, and multilateral and bilateral development
partners.

PRINCIPLES
This policy has evolved from the recognition that only such development
is sustainable, which respects ecological constraints, and the imperatives
2| NATIONAL ENVIRONMENT POLICY, 2006 525

of justice. The objectives stated above are to be realised through various

strategic interventions by different public authorities at Central, State and
local government levels. They would also be the basis of diverse partner-
ships. These strategic interventions, besides legislation and the evolution
of legal doctrines for realisation of the objectives, may be premised on a
set of unambiguously stated principles depending upon their relevance,
feasibility in relation to costs, and technical and administrative aspects
of their application. The following principles, may accordingly, guide the
activities of different actors in relation to this policy. Each of these prin-
ciples has an established genealogy in policy pronouncements, jurispru-
dence, international environmental law, or international State practice:

1. Human beings are at the centre of sustainable develop-

ment.—Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in har-
mony with nature.
2. The right to development.—The right to development must be ful-
filled so as to equitably meet developmental and environmental needs of
present and future generations.
3. Environmental protection is an integral part of the development
process.—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.
4. The precautionary approach.—Where there are credible threats
of serious or irreversible damage to key environmental resources, lack
of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.
5. Economic efficiency.—In various public actions for environmen-
tal conservation, economic efficiency would be sought to be realised.°
This principle requires that the services of environmental resources be
given economic value, and such value to count equally with the economic
values of other goods and services, in analysis of alternative courses of
action. Further implication of this principle are as follows:
(a) Polluter pays’.—Impacts of acts of production and consump-
tion of one party may be visited on third parties who do not have a
direct economic nexus with the original act. Such impacts are termed

6. Economic efficiency refers to the maximisation of welfare across all the members
of a society, given its human, natural and man-made resources, its technology, and
the preferences of its members. Welfare is reckoned as the aggregate of net value
realised by each member of society, in his or her objective perceptions, on a common
monetary metric. ; |
7. A polluter is one whose action potentially results in adverse impacts on third parties.
 ENVIRONMENTAL LAW [APP.
526
s are not
“externalities”. If the costs (or benefits) of the externalitie
lting
re-visited on the party responsible for the original act, the resu
-
level of the entire sequence of production or consumption, and exter
may be
nality, is inefficient. In such a situation, economic efficiency
restored by making the perpetrator of the externality bear the cost
(or benefit) of the same. The policy will, accordingly, promote the
internalisation of environmental costs, including through the use of
incentives based policy 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.
(b) Cost minimisation.—Where the environmental benefits of a
course of action cannot, for methodological or conceptual reasons, be
imputed economic value (as in the case of “incomparable entities”), in
any event the economic costs of realising the benefits should be mini-
mised. Efficiency of resource use may also be accomplished by the use
of policy instruments that create incentives to minimise wasteful use
and consumption of natural resources. The principle of efficiency also
applies to issues of environmental governance by streamlining pro-
cesses and procedures in order to minimise costs and delays.
6. Entities with “incomparable values”*®.— Significant risks to human
health, life, and environmental life-support systems, besides certain other
unique natural and man-made entities, which may impact the well-being,
broadly conceived, of large numbers of persons, may be considered as
“incomparable” in that individuals or societies would not accept these
risks for compensation in money or conventional goods and services.
A conventional economic cost-benefit calculus would not, accordingly,
apply in their case, and such entities would have priority in allocation of
societal resources for their conservation without consideration of direct
or immediate economic benefit.’
7. Equity.—The cardinal principle of equity or justice requires that
human beings cannot be treated differently based on irrelevant differ-
ences between them. Equity norms must be distinguished according to
context, 7.e. “procedural equity”, relating to fair rules for allocation of
entitlements and obligations, and “end-result equity”, relating to fair out-
comes in terms of distribution of entitlements and obligations. Each con-
text, in addition, must be distinguished in terms of “intra-generational
equity”, relating to justice within societies and, in particular, providing
space for the participation of the underprivileged, and “inter-generational
8. Term “incommensurable values” in the relevant literature.
, “g tex er
9. Example of entities with “incomparable values” are unique historical monument
such as Taj Mahal; charismatic species such as the tiger; or unique landscapes, such
as valley of flowers.
2] NATIONAL ENVIRONMENT POLICY, 2006 527

equity”, relating to justice between generations. Equity, in the context of

this policy refers to both equity in entitlements to, and participation of,
the relevant publics, in processes of decision-making over use of environ-
mental resources.
8. Legal liability.—The present environmental redressal mechanism
is predominantly based on doctrines of criminal liability, which have not
proved sufficiently effective, and need to be supplemented. Civil liability
for environmental damage would deter environmentally harmful actions,
and compensate the victims of environmental damage. Conceptually, the
principle of legal liability may be viewed as an embodiment in legal doc-
trine of the “polluter pays” approach, itself deriving from the principle
of economic efficiency. The following alternative approaches to civil lia-
bility may apply:
(a) Fault based liability.—In a fault based liability regime a party
is held liable if it breaches a pre-existing legal duty; for example, an
environmental standard.
(b) Strict liability.—Strict liability imposes an obligation to com-
pensate the victim for harm resulting from actions or failure to take
action, which may not necessarily constitute a breach of any law or
duty of care.!°
(c) Public trust doctrine.—The State is not an absolute owner, but a
trustee of all natural resources, which are by nature meant for public
use and enjoyment, subject to reasonable conditions, necessary to pro-
tect the legitimate interest of a large number of people, or for matters
of strategic national interest.
(d) Decentralisation.— Decentralisation involves ceding or transfer
of power from a Central Authority to State and 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.
(e) Integration.—Integration refers to the inclusion of environ-
mental! considerations in sectoral policy-making, the integration of
the social and natural sciences in environment related policy research
and the strengthening of relevant linkages among various agencies at
the Central, State and local self-government levels, charged with the
implementation of environmental policies.
(f) Environmental standard setting.—Environmental standards
must reflect the economic and social development situation in which

10. In terms of the decision of the Supreme Court in Shriram Gas Leak case and Bhopal
Gas Leak case, strict liability applies whenever the liable party damages a third party.
 [APP.
528 ENVIRONMENTAL LAW

they apply. Standards adopted in one society or context may have

unacceptable economic and social costs, if applied without discrimi-
nation in another society or context. Setting environmental standards
would involve several considerations, i.e. risks to human health, risks
to other environmental entities, technical feasibility, costs of compli-
ance and strategic considerations.
(g) Preventive action.—It is preferable to prevent environmental
damage from occurring in the first place, rather than attempting to
restore degraded environmental resources after the fact.
(b) Environmental offsetting.—There is a general obligation to
protect threatened or endangered species and natural systems that are
of special importance to sustaining life, providing livelihoods, or gen-
eral well-being. If for exceptional reasons of overriding public interest
such protection cannot be provided in particular cases, cost-effective
offsetting measures must be undertaken by the proponents of the
activity, to restore as nearly as may be feasible, the lost environmental
services to the same publics.

STRATEGIES AND ACTIONS

The foregoing statement of policy objectives and principles are to be real-
ised by concrete actions in different areas relating to key environmental
challenges. A large number of such actions are currently under way, and
have been for several years, in some cases, for many decades. In some
aspects, new themes would need to be pursued to realise the principles
and objectives. Action plans would need to be prepared on identified
themes by the agencies concerned at all levels of government— Central,
State/Union Territory, and local. In particular, the State and local gov-
ernments would be encouraged to formulate their own strategies or
action plans consistent with the NEP. Empowerment of panchayats and
the urban local bodies, particularly, in terms of functions, functionaries,
funds, and corresponding capacities, will require greater attention for
operationalising some of the major provisions of this policy.
Integration of environmental concerns in all relevant development
processes is among the objectives of this policy. Further, inclusion of
environmental considerations in sectoral policy-making has also been
recognised as among the principles underpinning the policy. In order to
operationalise these, a mechanism for ensuring necessary due diligence
at all levels of government, will be institutionalised.
The following strategic themes, and outlines of actions to be taken in
each, focus on both ongoing activities, functions, and roles, as well as
new initiatives that are necessary. However, they are not necessarily a
complete enumeration in each case.
2] NATIONAL ENVIRONMENT POLICY, 2006 529

Regulatory reforms
The regulatory regimes for environmental conservation comprise a leg-
islative framework, and a set of regulatory institutions. Inadequacies in
each have resulted in accelerated environmental degradation on the one
hand, and long delays and high transactions costs in development pro-
jects on the other. Apart from legislation, which is categorically premised
on environmental conservation, a host of sectoral and cross-sectoral laws
and policies, including fiscal regimes, also impact environmental quality
(some of these are discussed in the succeeding sections).

Revisiting the policy and legislative framework

The present legislative framework is broadly contained in the umbrella
Environment Protection Act, 1986; the Water (Prevention and Control of
Pollution) Act, 1974; the Water Cess Act, 1977 and the Air (Prevention
and Control of Pollution) Act, 1981. The law in respect of management of
forests and biodiversity is contained in the Forests Act, 1927; the Forest
(Conservation) Act, 1980; the Wild Life (Protection) Act, 1972; and the
Biodiversity Act, 2002. There are several other enactments, which com-
plement the provisions of these basic enactments. The following specific
actions would be taken:
1. Institutionalise a holistic and integrated approach to the manage-
ment of environmental and natural resources, explicitly identifying
and integrating environmental concerns in relevant sectoral and
cross-sectoral policies, through review and consultation, in line
with the NEP.
2. Identify emerging areas for new legislation, due to better scientific
understanding, economic and social development and development
of multilateral environmental regimes, in line with the NEP.
3. Review the body of existing legislation in order to develop synergies
among relevant statutes and regulations, eliminate obsolescence,
and amalgamate provisions with similar objectives, in line with the
NEP. Further, encourage and facilitate review of legislation at the
level of State and local governments with a view to ensuring their
consistency with this policy.
4. Take steps to adopt and institutionalise techniques for environ-
mental assessment of sector policies and programmes to address
any potential adverse impacts, and enhance potential favourable
impacts.
5. Ensure accountability of the concerned levels of government
(Centre, State, local) in undertaking the necessary legislative
changes in a defined time-frame, with due regard to the objectives
and principles of NEP, in particular, ensuring the livelihoods and
530 ENVIRONMENTAL LAW [APP.

well-being of the poor by ensuring improved access to the neces-

sary environmental resources.

Process related reforms

1. Approach.—The recommendations of the committee on reforming
investment approval and implementation procedures (the Govindarajan
Committee), which identified delays in environment and forest clearance
as the largest source of delays in development projects, will be followed
for reviewing the existing procedures for granting clearances and other
approvals under various statutes and rules. These include the Environment
Protection Act; the Forest Conservation Act; the Water (Prevention and
Control of Pollution) Act; the Air (Prevention and Control of Pollution)
Act; the Wildlife (Protection) Act; and the Genetic Engineering Approval
Committee Rules under the Environment Protection Act. The objective
is to reduce delays and levels of decision-making, realise decentralisa-
tion of environmental functions, and ensure greater transparency and
accountability. In addition, the following actions will be taken:
(a) In order to ensure faster decision-making with greater transparency,
and access to information, use of information technology based
tools will be promoted, together with necessary capacity-building,
under all action plans.
(b) In order to realise greater decentralisation, State level agencies may
be given greater responsibility for environmental regulation and
management. Such empowerment must, however, be premised on
increased transparency, accountability, scientific and managerial
capacity, and independence in regulatory decision-making and
enforcement action. Accordingly, States would be encouraged 10
set up environment protection authorities on this basis.
(c) Mechanisms and processes would be set up to identify entities of
“incomparable value” in different regions. It would be ensured
that all regulatory mechanisms are legally empowered to follow
the principles of good governance.
2. Framework for legal action. —The present approach to dealing with
environmentally unacceptable behaviour in India has been largely based
on criminal processes and sanctions. Although criminal sanctions, if suc-
cessful, may create a deterrent impact, in reality they are rarely fruitful
for a number of reasons. On the other hand, giving unfettered powers to
enforcement authorities may lead torrent seeking. Civil law, on the
other
hand, offers flexibility, and its sanctions can be more effectively
tailored
to particular situations. The evidentiary burdens of civil procee
dings are
less daunting than those of criminal law. It also allows for preven
tive
policing through orders and injunctions. Accordingly, a judicious
mix of
2] NATIONAL ENVIRONMENT POLICY, 2006 531

civil and criminal processes.and sanctions will be employed in the legal

regime for enforcement, through a review of the existing legislation. Civil
liability law, civil sanctions, and processes would govern most situations
of non-compliance. Criminal processes and sanctions would be available
for serious and potentially provable infringements of environmental law,
and their initiation would be vested in responsible authorities. Recourse
may also be had to the relevant provisions in the Penal Code, 1860 and
the Criminal Procedure Code, 1973. Both civil and criminal penalties
would be graded according to the severity of the infraction.

Substantive reforms
1. Environment and forests clearances.—Environmental impact
assessment will continue to be the principal methodology for appraising
and reviewing new projects. The assessment processes are under major
revision in line with the Govindarajan Committee recommendations.
Under the new arrangements, there would be significant devolution of
powers to the State/Union Territory level. However, such devolution,
to be effective, needs to be accompanied by adequate development of
human and institutional capacities. Further, in order to make the clear-
ance processes more effective, the following actions will be taken:
(a) Encourage regulatory authorities, Central and State, to institution-
alise regional and cumulative environmental impact assessments to
ensure that environmental concerns are identified and addressed at
the planning stage itself.
(b) Specifically assess the potential for chemical accidents of relevant
projects as part of the environmental appraisal process.
(c) Give due consideration to the quality and productivity of lands
which are proposed to be converted for development activities,
as part of the environmental clearance process. Projects involving
large-scale diversion of prime agricultural land would require envi-
ronmental appraisal.
(d) Encourage clustering of industries and other development activities
to facilitate setting up of environmental management infrastruc-
ture, as well as monitoring and enforcing environmental compli-
ance. Emphasise post project monitoring and implementation of
environmental management plans through participatory processes,
involving adequately empowered relevant levels of government,
industry and the potentially impacted community.
(e) Restrict the diversion of dense natural forests and areas of high
endemism of genetic resources, to non-forest purposes only to
site-specific cases of vital national interest. No further regularisa-
tion of encroachment on forests should be permitted.
532 ENVIRONMENTAL LAW [APP.

(f) Ensure that in all cases of diversion of forest, the essential mini-
mum needed for the project or activity is diverted. The diverted
area must not be cleared until the actual construction starts.
(g) Ensure provision for environmental restoration after decommis-
sioning of industries, in particular mine closure in all approvals of
mining plans, and institutionalise a system of post-monitoring of
such projects.
(b) Formulate, and periodically update, codes of “good practices” for
environmental management for different categories of regulated
activities.
2. Coastal areas.—Development activities in the coastal areas are by
means of the Coastal Regulation Zone (CRZ) notifications and Integrated
Coastal Zone Management (ICZM) plans made under them. However,
there is need to ensure that the regulations are firmly founded on scien-
tific principles, including the physical, natural, and social sciences. This is
necessary to ensure effective protection to valuable coastal environmen-
tal resources, without unnecessarily impeding livelihoods, or legitimate
coastal economic activity, or settlements, or infrastructure development.
Islands offer unique ecosystems and coastal planning and regulation in
their case needs to take into account features such as their geological
nature, settlement patterns, volcanic or coral nature of the islands, size
of the habitations, unique cultures, livelihood patterns, etc. Adequate
environmental safeguards should be built into development projects in
the islands, in particular those relating to tourism, high value agricul-
ture, deep sea fishing, prospecting for oil and natural gas, etc. It is recog-
nised that States will require both technical and financial resources for
preparation of ICZM plans. The following actions will be taken:
(a) Revisit the CRZ notifications to make the approach to coastal
environmental regulation more holistic, and thereby ensure protec-
tion to coastal ecological systems, coastal waters, and the vulnera-
bility of some coastal areas to extreme natural events and potential
sea level rise. The ICZM plans need to be comprehensive, and pre-
pared on strong scientific basis by experts with the participation
of the local communities both in formulation and implementation.
The ICZM plans should be reviewed at predetermined intervals
to take account of changes in geomorphology, economic activ-
ities, settlement patterns, and coastal and marine environmental
conditions.
(b) Decentralise, to the extent feasible, the clearance of specific pro-
jects to State level environmental authorities, exempting activities,
which do not cause significant environmental impacts, and are
consistent with approved ICZM plans.
2] NATIONAL ENVIRONMENT POLICY, 2006 533

3. Living modified organisms (LMOs)''.—Biotechnology has

immense potential to enhance livelihoods and contribute to the economic
development of the country. On the other hand, LMOs may pose sig-
nificant risks to ecological resources, and perhaps, human and animal
health. In order to ensure that development of biotechnology does not
lead to unforeseen adverse impacts, the following actions will be taken:
(a) Review the regulatory processes for LMOs so that all relevant sci-
entific knowledge is taken into account, and ecological, health, and
economic concerns are adequately addressed.
(b) Periodically review the National Bio-safety Guidelines, and Bio-
safety Operations Manual to ensure that these are based on current
scientific knowledge.
(b) Ensure the conservation of biodiversity and human health when
dealing with LMOs in transboundary movement in a manner con-
sistent with the multilateral Bio-safety Protocol.
4. Environmentally sensitive zones.—Environmentally Sensitive
Zones (ESZ) may be defined as areas with identified environmental
resources having “incomparable values” which require special attention
for their conservation. In order to conserve and enhance these resources,
without impeding legitimate socio-economic development of these areas,
the following actions will be taken:
(a) Identify and give legal status to ESZ in the country having envi-
ronmental entities with “incomparable values” requiring special
conservation efforts.
(b) Formulate area development plans for these zones on a scientific
basis, with adequate participation by the local communities.
(c) Create local institutions with adequate participation for the envi-
ronmental management of such areas, to ensure adherence to the
approved area development plans, which should be prepared in
consultation with the local communities.
5. Monitoring of compliance . enforcement of environmental
— Weak
compliance is attributed to inadequate technical capacities, monitoring
infrastructure, and trained staff in enforcement institutions. In addi-
tion, there is insufficient involvement of the potentially impacted local
communities in the monitoring of compliance, and absence of institu-
tionalised public-private partnerships in enhancement of monitoring
infrastructure. The following actions will be taken:

11. In general, genetically modified organisms requires evaluation of their potential

benefit and risk as part of relevant regulatory process. The subset of LMOs may,
however, owing to their potential for replication, involve environmental concerns in
addition.
534. ENVIRONMENTAL LAW [APP.

s to ena-
(a) Take measures, including capacity development initiative
ble Panchayati Raj Institutions and urban local bodies to under-
take monitoring of compliance with environmental management
plans. Measures will also be taken to encourage municipalities to
annually report their environmental performance to their govern-
ing bodies.
(b) Develop feasible models of public-private partnerships to leverage
financial, technical, and management resources of the private sec-
tor in setting up and operating infrastructure for monitoring of
environmental compliance, with ironclad safeguards against possi-
ble conflict of interest or collusion with the monitored entities.
6. Use of economic principles in environmental decision-making. —It
is necessary that the costs associated with the degradation and deple-
tion of natural resources be incorporated into the decisions of economic
actors at various levels, to reverse the tendency to treat these resources
as “free goods” and to pass the costs of degradation to other sections
of society, or to future generations of the country. At the macro-level, a
system of natural resource accounting is required to assess whether in
the course of economic growth we are drawing down, or enhancing, the
natural resource base of production, including relevant depletable assets.
In addition, the environmental costs and benefits associated with various
activities, including sectoral policies, should be evaluated to ensure that
these factors are duly taken into account in decision-making. The cur-
rent near exclusive reliance on fiats based instruments for environmental
regulation do not permit individual actors to minimise their own costs
of compliance. This leads, on the one hand, to non-compliance in many
cases, and on the other, unnecessary diversion of societal resources from
other pressing needs. Economic instruments, of which a large, feasible
suite, has emerged through practical experience in several developed and
developing countries, work by aligning the interests of economic actors
with environmental compliance, primarily through application of “pol-
luter pays”. This may ensure that for any given level of environmental
quality desired, the society-wide costs of meeting the standard are mini-
mised. However, in some cases, use of economic instruments may require
intensive monitoring, which too may entail significant societal costs.
On the other hand, use of existing policy instruments, such as the fis-
cal regime, may significantly reduce or eliminate the need for enhanced
institutional capacities to administer the incentive based instruments. In
future, accordingly, a judicious mix of incentives and fiats based regula-
tory instruments would be considered for each specific regulatory situa-
tion. The following actions will be taken:
(a) Strengthen, including through capacity building, the initiatives,
taken by the Central Statistical Organisation (CSO) in the area of
2] NATIONAL ENVIRONMENT POLICY, 2006 535

natural resource accounting, with a view to its adoption in the sys-

tem of national income accounts. Further strengthen in all respects,
the system of collection, collation and analysis of all significant and
relevant environmental monitoring data.
(b) Develop and promote the use of standardised environmen-
tal accounting practices and norms in preparation of statutory
financial statements for large industrial enterprises, in order to
encourage greater environmental responsibility in investment deci-
sion-making, management practices and public scrutiny.
(c) Encourage financial institutions to adopt appropriate appraisal
practices, so that environmental risks are adequately considered in
the financing of projects. ,
(d) Facilitate the integration of environmental values into cost-benefit
analysis, to encourage more efficient allocation of resources while
making public investment decisions.
(ec) Prepare and implement an action plan on the use of economic instru-
ments for environmental regulation in specified contexts, including
those relating to unsustainable production and consumption.
(f) Consider creation of a National Environment Restoration Fund
from the net proceeds of economic instruments, user fees for access
to specified natural resources, and voluntary contributions. The
fund may be used for restoration of environmental resources,
including clean-up of toxic and hazardous waste legacies.

Enhancing and conserving environmental resources

Perverse production and consumption practices are the immediate causes
of environmental degradation, but an exclusive focus on these aspects
alone is insufficient to prevent environmental harm. The causes of deg-
radation of environmental resources lie ultimately in a broad range of
policy, and institutional, including regulatory shortcomings, leading to
the direct causes. However, the range of policies, and legal and institu-
tional regimes, which impact the proximate factors, is extremely wide,
comprising fiscal and pricing regimes, and sectoral and cross-sectoral
policies, laws, and institutions. Accordingly, apart from programmatic
approaches, review and reform of these regimes to account for their envi-
ronmental consequences is essential. In addition, there is lack of aware-
ness of the causes and effects of environmental degradation, and how they
may be prevented, among both specialised practitioners of the relevant
professions, including policy-makers, as well as the general public, which
needs to be redressed. Jn this sub-section, in respect of major categories
of environmental resources, the proximate and deeper causes of their
degradation, and specific initiatives for addressing them are outlined.
536 ENVIRONMENTAL LAW [APP.
,

Land degradation
The degradation of land, through soil erosion, alkali-salinisation, water
logging, pollution, and reduction in organic matter content has several
proximate and underlying causes. The proximate causes include loss of
forest and tree cover (leading to erosion by surface water run-off and
winds), unsustainable grazing, excessive use of irrigation (in many cases
without proper drainage, leading to leaching of sodium and potassium
salts), improper use of a agricultural chemicals (leading to accumulation
of toxic chemicals in the soil), diversion of animal wastes for domes-
tic fuel (leading to reduction in soil nitrogen and organic matter), and
disposal of industrial and domestic wastes on productive land. These
proximate causes of land degradation in turn, are driven by implicit
and explicit subsidies for water, power, fertiliser and pesticides. Grazing
lands are usually common property resources, and insufficient empower-
ment of local institutions for their management leads to overexploitation
of the biomass base. The absence of conducive policies and persistence
of certain regulatory practices reduces people’s incentives for afforesta-
tion, and leads to reduced levels of green cover. It is essential that the
relevant fiscal, tariffs, and sectoral policies take explicit account of their
unintentional impacts on land degradation, if the fundamental basis of
livelihoods for the vast majority of our people is not to be irreparably
damaged. In addition, to such policy review, the following specific initi-
atives would be taken:
1. Encourage adoption of science-based, and traditional sustainable
land use practices, through research and development, extension
of knowledge, pilot scale demonstrations, and large scale dissemi-
nation, including farmer’s training, and where necessary, access to
institutional finance.
2. Promote reclamation of wasteland and degraded forestland,
through formulation and adoption of multi-stakeholder partner-
ships, involving the land owning agency, local communities, and
investors.
3. Prepare and implement thematic action plans incorporating water-
shed management strategies, for arresting and reversing desertifica-
tion and expanding green cover.
4. Promote sustainable alternatives to shifting cultivation where it is
no longer ecologically viable, ensuring that the culture and social
organisation of the local people are not disrupted.
y- Encourage agro-forestry, organic farming, environmentally sus-
tainable cropping patterns, and adoption of efficient irrigation
techniques.
2] NATIONAL ENVIRONMENT POLICY, 2006 537

Desert ecosystems :
The arid and semi-arid region of India covers 127.3 mha (38.8 per cent)
of India’s geographical area and spreads over 1o States. The Indian
desert fauna is extremely rich in species diversity of mammals and win-
ter migratory birds. However the pressures of a rapidly increasing pop-
ulation on the natural resource base necessitate adoption of innovative
and integrated measures for conservation of desert ecosystems. These
pressures are enhanced by practices, which lead to land degradation, as
described above. The needed measures include:
1. Intensive water and moisture conservation through practices based
on traditional and science based knowledge, and relying on tradi-
tional infrastructure.
Enhancing and expanding green cover based on local species.
3. Reviewing the agronomic practices in these areas, and promoting
agricultural practices and varieties, which are well adapted to the
desert ecosystem.

Forests and wildlife

1. Forests.—Forests provide a multiplicity of environmental services.
Foremost among these is the recharging of mountain aquifers, which
sustain our rivers. They also conserve the soil, and prevent floods and
drought. They provide habitat for wildlife and the ecological conditions
for maintenance and natural evolution of genetic diversity of flora and
fauna. They are the homes of traditional forest dependent communi-
ties. They yield timber, fuelwood, and other forest produce, and possess
immense potential for economic benefits, in particular for local com-
munities, from sustainable eco-tourism. On the other hand, in recent
decades, there has been significant loss of forest cover, although there
are now Clear signs of reversal of this trend. The principal direct cause of
forest loss has been the conversion of forests to agriculture, settlements,
infrastructure, and industry. In addition, commercial extraction of fuel-
wood, illegal felling, and grazing of cattle, has degraded forests. These
causes, however, have their origins in the fact that the environmental
values provided by forests are not realised as direct financial benefits by
various parties, at least to the extent of exceeding the monetary incomes
from alternative uses, including those arising from illegal use. Moreover,
while since antiquity forest dwelling communities had generally recog-
nised traditional community entitlements over the forests, on account
of which they had strong incentives to use the forests sustainably and to
protect them from encroachers, following the commencement of formal
forest laws and institutions in 1865, these entitlements were effectively
extinguished in many parts of the country. Such disempowerment has
538 ENVIRONMENTAL LAW [APP.

led to the forests becoming open access in nature, leading to their grad-
ual degradation in a classic manifestation of the “tragedy of the com-
mons”. It has also led to perennial conflict between the forest dependent
communities and the Forest Department, constituting a major denial of
justice. The Panchayats (Extension to the Scheduled Areas) Act, 1996;
and the relevant provisions of Part IX of the Constitution may provide a
framework for restoration of the key traditional entitlements.
It is essential that women play a greater role in the management
of natural resources. While they have to bear the burden of natural
resource degradation, they have little control over the management
of these resources. Relevant provisions of the National Policy for the
Empowerment of Women provide a framework for incorporating ele-
ments of proposed actions.
It is possible that some site-specific non-forest activities may yield
overall societal benefits significantiy exceeding that from the environ-
mental services provided by the particular tract of forest. However,
large scale forest loss would lead to catastrophic, permanent change
in the country’s ecology, leading to major stress on water resources
and soil erosion, with consequent loss of agricultural productivity,
industrial potential, living conditions, and the onset of natural disasters,
including drought and floods. In any event, the environmental values of
converted forests must be restored, as nearly as may be feasible, to the
same publics.
The National Forest Policy, 1988; and the Indian Forest Act, 1927;
as well as the regulations under it, provide a comprehensive basis for
forest conservation. The National Forest Commission, set up in 2003,
is reviewing the policy, legislative and institutional basis of forest man-
agement. Nevertheless, it is necessary, looking to some of the underlying
causes of forest loss, to take some further steps. These include:
(a) Give legal recognition of the traditional entitlements of forest
dependant communities taking into consideration the provisions
of the Panchayats (Extension to the Scheduled areas) Act, 1996.
This would remedy a serious historical injustice, secure their liveli-
hoods, reduce possibilities of conflict with the Forest Departments,
and provide long-term incentives to these communities to conserve
the forests.
(b) Formulate an innovative strategy for increase of forest and tree
cover from the 2003 level of 23.69 per cent of the country’s land
area, to 33 per cent in 2012, through afforestation of degraded for-
est land, wastelands and tree cover on private or revenue lands. Key
elements of the strategy would include i) the implementation of mul-
ti-stakeholder partnerships involving the Forest Department, land
owning agencies, local communities, and investors, with clearly
2| NATIONAL ENVIRONMENT POLICY, 2006 539

defined obligations and entitlements for each partner, following

good governance principles, to derive environmental, livelihood,
and financial benefits; i/) rationalisation of restrictions on culti-
vation of forest species outside notified forests, to enable farmers
to undertake social and farm forestry where their risk-return-term
profiles are more favourable than cropping; iii) universal adoption
of community based practices such as Joint Forest Management,
Van Panchayats and their variants, in forest management, with
assured participation of women, throughout the country; and
iv) focus public investments on enhancing the density of natural
forests, mangroves conservation, and universalisation of commu-
nity based practices.
(c) Formulate an appropriate methodology for reckoning and restor-
ing the environmental values of forests, which are unavoidably
diverted to other uses.
(d) Formulate and implement a “Code of Best Management Practices”
for dense natural forests, to realise the objectives and principles
of the NEP. Forests of high indigenous genetic diversity should be
treated as entities with incomparable value.
(e) Denotify bamboo and similar other species as “forest species”
under the Forest Conservation Act to facilitate their cultivation
outside notified forests, and encourage their productive utilisation
in economic activities.
(f) Promote plantation of only such species as are conducive to the
conservation and sustainability of given ecosystems.
2. Wildlife. —The status of wildlife in a region is an accurate index of
the state of ecological resources, and thus of the natural resource base
of human well-being. This is because of the interdependent nature of
ecological entities, (“the web of life”) in which wildlife is a vital link."
Moreover, several charismatic species of wildlife embody “incompara-
ble values”, and at the same time, comprise a major resource base for
sustainable eco-tourism. Conservation of wildlife, accordingly, involves
the protection of entire ecosystems. However, in several cases, delinea-
tion of and restricting access to such Protected Areas!’ (PAs), as well as
disturbance by humans on these areas has led to man-animal conflicts.
While physical barriers and better policing may temporarily reduce such
conflict, it is also necessary to address their underlying causes. These

12. For example, the presence of predators (“tiger”) indicates that the prey (“deer”) is
sound, in turn indicating that the vegetative cover (“grass”) is healthy, for which the
conservation of soil, water, and absence of pollution is essential. The last indicate
conditions conducive to human health and livelihood.
13. Protected area may include forest as well as non-forest ecosystem, e.g., desert, marine
sanctuaries.
 [APP.
540 ENVIRONMENTAL LAW

eholders in
may largely arise from the non-involvement of relevant stak
traditional
identification and delineation of PAs, as well as the loss of
e is
entitlements of local people, especially tribals, over the PAs. Ther
tic
also a strong need for creation of corridors to ensure proper gene
flows across habitats. Since wildlife does not remain confined to par-
ticular areas, there is also need to ensure greater protection, and habitat
enhancement outside the PAs. In respect of wildlife conservation, the
following actions will be pursued:
ig Expand the PA network of the country, including
Conservation
and Community Reserves, to give fair representation to all bio-
geographic zones of the country. In doing so, develop norms for
delineation of PAs in terms of the objectives and principles of the
NEP, in particular, participation of local communities, public
agencies concerned, and other stakeholders, who have a direct and
tangible stake in protection and conservation of wildlife, to harmo-
nise ecological and physical features with needs of socio-economic
development.
Revisit the norms, criteria and needs of data for placing particular
species in different schedules of the Wild Life Protection Act.
. Formulate and implement programs for conservation of endan-
gered species outside PAs, while reducing the scope for man-animal
conflict.
Empower, build capacities, and facilitate access to finance and tech-
nology, for local people, in particular tribals, who are relocated
from PAs, or live in the fringe areas, for provision of eco-tourism
services in the PAs.
Paralleling multi-stakeholder partnerships for afforestation, formu-
late and implement similar partnerships for enhancement of wild-
life habitat in Conservation Reserves and Community Reserves, to
derive both environmental and eco-tourism benefits.
. Promote site-specific eco-development programmes in fringe areas
of PAs, to restore livelihoods and access to forest produce by local
communities, owing to access restrictions in PAs.
Strengthen capacities and implement measures for captive breeding
and release into the wild, identified endangered species.
. Review and tighten the provisions of relevant legislation to enhance
their deterrence. Further, strengthen institutional measures and
capacities of enforcement authorities, with respect to intelligence
collection, investigation, and prosecution, to deal with wildlife
crime.
9. Ensure that human activities on the fringe areas of PAs do not
degrade the habitat or otherwise significantly disturb wildlife.
2| NATIONAL ENVIRONMENT POLICY, 2006 541

Biodiversity, traditional knowledge, and natural heritage

Conservation of genetic diversity, is crucial for development of improved
crop varieties resistant to particular stresses, new pharma products, etc.,
apart from ensuring the resilience of ecosystems. Traditional knowledge,
referring to ethno-biology knowledge possessed by local communities, is
the basis of their livelihoods, and also a potent means of unlocking the
value of genetic diversity through reduction in search costs. Natural her-
itage sites, including endemic “biodiversity hotspots”, sacred groves and
landscapes, are repositories of significant genetic and ecosystem diver-
sity, and the latter are also an important basis for eco-tourism. They are
nature’s laboratories for evolution of wild species in response to change
in environmental conditions. India is fortunate in having, through the
efforts of dedicated scientists over many decades", developed vast inven-
tories of floral and faunal resources, as well as ethno-biology knowledge.
India is, thus well-placed to tap this enormous resource base for benefits
for the country as a whole, and local communities in particular, pro-
vided that the genetic resources are conserved, and appropriate intellec-
tual property rights conferred on local communities in respect of their
ethno-biology knowledge. A large-scale exercise has been completed for
providing inputs towards a National Biodiversity Strategy and Action
Plan. These inputs would be reviewed in terms of the objectives and prin-
ciples of NEP, scientific validity, financial and administrative feasibility,
and legal aspects. In any event, the following measures would be taken:
1. Strengthen the protection of areas of high endemism of genetic
resources (“biodiversity hot spots”), while providing alternative
livelihoods and access to resources to local communities who may
be affected thereby.
2. Pay explicit attention to the potential impacts of development pro-
jects on biodiversity resources and natural heritage. In appraisal
of such projects by cost-benefit analysis, assign values to biodiver-
sity resources at or near the upper end of the range of uncertainty.
In particular, ancient sacred groves and “biodiversity hotspots”
should be treated as possessing “incomparable values”.
3. Enhance ex-situ conservation of genetic resources in designated
gene banks across the country. Genetic material of threatened spe-
cies of flora and fauna must be conserved on priority.
4. The Patents Act, 1970 addresses several aspects of the issue of
disclosure. The Act mandatorily requires disclosure of source and
geographical origin of biological material used in an invention
while applying for patents. Failure to disclose and wrongful disclo-
sure are allowed as grounds for opposition to the grant of patent
14. For example, in institutions such as Botanical Survey of India (BSI), Zoological
Survey of India (ZSI), Bombay Natural History Society (BNHS), and others.
542 ENVIRONMENTAL LAW [APP.

Act also
and patent may be revoked on these grounds. The Patents
rd to hav-
requires the applicant to furnish a declaration with rega
ority to
ing obtained necessary permission of the competent auth
e
use the biological material from India. There is need to harmonis
these provisions with the Biodiversity Conservation Act, in par-
ticular to enable local communities holding traditional knowledge
of use of such biological material to benefit from providing access
to such knowledge.
5. There is need to formulate an appropriate system for prior informed
consent and fair and equitable benefit sharing in respect of biolog-
ical material and traditional knowledge of use of such biological
material to enable the country and local communities respectively
to derive economic benefits from providing access. These issues
are complex and, therefore, modalities for their implementation
need to be carefully worked out. Towards this end, attempt would
be made to attain greater congruence between these trade related
aspects of intellectual property rights.

Freshwater resources
India’s freshwater resources comprise the single most important class of
natural endowments enabling its economy and its human settlement pat-
terns. The freshwater resources comprise the river systems, groundwater,
and wetlands. Each of these has a unique role, and characteristic link-
ages to other environmental entities.
1. River systems. — India’s river systems typically originate in its moun-
tain ecosystems, and deliver the major part of their water resources’
to the populations in the plains. According to the Third Assessment
Report of the Intergovernmental Panel on Climate Change (IPCC, 2001)
almost 67 per cent of the glaciers in the Himalayan mountain range have
retreated in the past decade. Available records suggest that the Gangotri
glacier is retreating by about 30 meters per year. Elevated global mean
temperature may increase net melting rates resulting in glacial retreat
and consequent adverse impact on flows in major rivers.
Rivers are also subject to siltation from sediment loads due to soil
loss, itself linked to loss of forest and tree cover. They are also subject
to significant net water withdrawals along their course, due to agricul-
tural, industrial, and municipal use; as well as pollution from human and
animal waste, agricultural run-offs, and industrial effluents. Although
the rivers possess significant natural capacity to assimilate and render

15. The National Water Policy, 2000 prioritises water use needs in the following order.
Drinking water, irrigation and agricultural use, hydropower, ecological services,
industrial, navigation, and tourism.
2] NATIONAL ENVIRONMENT POLICY, 2006 543

harmless many pollutants, the existing pollution inflows in many cases

substantially exceed such natural capacities. This fact, together with pro-
gressive reductions in stream flows, ensures that the river water quality in
the vast majority of cases declines as one goes downstream. The results
include loss of aquatic flora and fauna, leading to loss of livelihoods
for river fisherfolk, significant impacts on human health from polluted
water, increased drudgery for poor, rural women in collecting drinking
water from distant water bodies, loss of habitat for many bird species,
and loss of inland navigation potential. Apart from these, India’s rivers
are inextricably linked with the history and religious beliefs of its peo-
ples, and the degradation of important river systems accordingly offends
their spiritual, aesthetic, and cultural sensibilities. The direct causes of
river degradation are, in turn, linked to several policies and regulatory
regimes. These include tariff policies for irrigation systems and indus-
trial use, which, through inadequate cost recovery, provide incentives
for overuse near the headworks’ of irrigation systems, and drying up of
irrigation systems at the tail-ends. This results in excessive cultivation of
water intensive crops near the headworks, which may lead to inefficient
water use, waterlogging and soil salinity and alkalinity. The irrigation
tariffs also do not yield resources for proper maintenance of irrigation
systems, leading to loss in their potential. In particular, resources are
generally not available for lining irrigation canals to prevent seepage loss.
These factors result in reduced flows in the rivers. Pollution loads are sim-
ilarly linked to pricing policies leading to inefficient use of agricultural
chemicals, and municipal and industrial water use. In particular, reve-
nue yields for the latter two are insufficient to install and maintain sew-
age and effluent treatment plants, respectively. Pollution regulation for
industries is typically not based on formal spatial planning to facilitate
clustering of industries to realise scale economies in effluent treatment,
resulting in relatively high costs of effluent treatment and consequent
increased incentives for non-compliance. There is, accordingly need to
review the relevant pricing policy regimes and regulatory mechanisms,
in terms of their likely adverse environmental impacts. The following
comprise elements of an action plan for river systems:
(a) Promote research in glaciology to evaluate the impacts of climate
change on glaciers and river flows.
(b) Promote integrated approaches'® to management of river basins by
the river authorities concerned, considering upstream and down-
stream inflows and withdrawals by season, interface between land
and water, pollution loads and natural regeneration capacities, to
ensure maintenance of adequate flows in particular for maintenance

16. The National Water Policy, 2002, further expands on this strategy.
 LAW [APP.
544. ENVIRONMENTAL

r quality
of in-stream ecological values, and adherence to wate
standards throughout their course in all seasons.
flora and
(c) Consider and mitigate the impacts on river and estuarine
s,
fauna, and the resulting change in the resource base for livelihood
of multipurpose river valley projects, power plants, and industries.
(d) Consider mandating the installation of water saving closets and
taps in the building bye-laws of urban centres, and other available
regulatory mechanisms.
(ce) Integrate conservation and wise use of wetlands into river basin
management involving all relevant stakeholders, in particular local
communities, to ensure maintenance of hydrological regimes and
conservation of biodiversity.
(f) Incorporate a special component in afforestation programmes for
afforestation on the banks and catchments of rivers and reservoirs
to prevent soil erosion and improve green cover.
2. Groundwater.— Groundwater is present in underground aquifers
in many parts of the country. Aquifers near the surface are subject to
annual recharge from precipitation, but the rate of recharge is impacted
by human interference. Deep aquifers, on the other hand, occur below a
substratum of hard rock. The deep aquifers generally contain very pure
water, but since they are recharged only over many millennia, must be
conserved for use only in periods of calamitous drought, such as may
happen only once in several hundred years. The boundaries of ground-
water aquifers do not generally correspond to the spatial jurisdiction of
any local public authorities or private holdings, nor are they easily dis-
cernible, nor can withdrawals be easily monitored, leading to the una-
voidable situation of groundwater being an open access resource. The
water table has been falling rapidly in many areas of the country in recent
decades. This is largely due to withdrawal for agricultural, industrial
and urban use, in excess of annual recharge. In urban areas, apart from
withdrawals for domestic and industrial use, housing and infrastructure
such as roads, prevent sufficient recharge. In addition, some pollution
of groundwater occurs due to leaching of stored hazardous waste and
use of agricultural chemicals, in particular, pesticides. Contamination of
groundwater is also due to geogenic causes, such as leaching of arsenic
and fluoride from natural deposits. Since groundwater is frequently a
source of drinking water, its pollution and contamination leads to seri-
ous health impacts. The direct causes of groundwater depletion have
their origin in the pricing policies for electricity and diesel. In the case
of electricity, wherever individual metering is not practiced, a flat charge
for electricity connections makes the marginal cost of electricity effec-
tively zero. Subsidies for diesel also reduce the marginal cost of extrac-
tion to well below the efficient level. Given the fact that groundwater is
2] NATIONAL ENVIRONMENT POLICY, 2006 545

an open access resource, the user then “rationally” (i.e. in terms of his
individual perspective), extracts groundwater until the marginal value
to him equals his now very low marginal cost of extraction.'” The result
is inefficient withdrawals of groundwater by all users, leading to the sit-
uation of falling water tables. Support prices for several water intensive
crops with implicit price subsidies aggravate this outcome by strength-
ening incentives to take up these crops rather than less water intensive
ones. In coastal areas this over exploitation and inadequate recharge of
groundwater may also cause serious problem of saline ingress, leading to
adverse health impacts and loss of land productivity. Falling water tables
have several perverse social impacts, apart from the likelihood of mining
of deep aquifers, “the drinking water source of last resort”. The capi-
tal costs of pump sets and bore wells for groundwater extraction when
water tables are very deep may be relatively high, with no assurance that
water would actually be found. In such a situation, a user who may be
a marginal farmer able to borrow the money only at usurious rates of
interest, may, in case water is not found, find it impossible to repay his
debts. This may lead to destitution, or worse. Even if the impacts were
not so dire, there would be excessive use of electricity and diesel. The
efficient use of groundwater would, accordingly, require that the practice
of non-metering of electric supply to farmers be discontinued in their
own enlightened self-interest. It would also be essential to progressively
ensure that the environmental impacts are taken into account in setting
electricity tariffs, and diesel pricing. Increased run-off of precipitation in
urban areas due to impermeable structures and infrastructure prevents
natural groundwater recharge. This is an additional cause of falling water
tables in urban areas as large quantities of groundwater are pumped out
for urban use. In rural areas several cost-effective rainwater harvesting
and artificial recharge techniques have been proven to enhance ground-
water recharge. A number of effective traditional water management
techniques to recharge groundwater have been discontinued by the local
communities due to the onset of pump sets extraction, and need to be
revived. Finally, an increase in tree cover is also effective in enhancing
soil moisture retention and preventing soil erosion. Pollution of ground-
water from agricultural chemicals is also linked to their improper use,
once again due to pricing policies, especially for chemical pesticides, as
well as agronomic practices, which do not take the potential environ-
mental impacts into account. While transiting through soil layers may
considerably eliminate organic pollution loads in groundwater, this is
not true of several chemical pesticides. The pesticides themselves may
17. The marginal cost of extraction equals the marginal cost to the farmer of power
of a bore
(“zero”) or diesel, and a small labour and depreciation cost. The capital cost
well as well as the flat rate connection charges are sunk costs and do not count in the
marginal cost of water.
 ENVIRONMENTAL LAW [APP.
546

become a source of pollution when it leaches into the groundwater. The

following actions will be taken:
(a) Take explicit account of impacts on groundwater tables of electric-
ity tariffs and pricing of diesel.
(b) Promote efficient water use techniques, such as sprinkler or drip
irrigation, among farmers. Provide necessary pricing, inputs, and
extension support to feasible and remunerative alternative crops
which may be raised by efficient water use.
Ensure availability of groundwater potential maps through a desig-
nated institution.
Support practices of rain water harvesting and artificial recharge
and revival of traditional methods for enhancing groundwater
recharge.
Mandate water harvesting and artificial recharge in all new con-
structions in relevant urban areas, as well as design techniques for
road surfaces and infrastructure to enhance groundwater recharge.
Promote capacity development of relevant stakeholders and pro-
vide web based information on water harvesting techniques.
Prepare and implement a comprehensive strategy for regulating use
of groundwater by large industrial and commercial establishments
on the basis of a careful evaluation of aquifer capacity and annual
recharge.
Support R&D in cost effective techniques suitable for rural drink-
ing water projects for remedial measures and removal of arsenic,
fluoride, and other toxic substances and mainstream their adoption
in rural drinking water schemes in relevant areas.
Improve productivity per unit of water consumed in industrial pro-
cesses, by making water assessments and water audits mandatory
in identified industries and utilities.
Suitable sites for dumping the toxic waste material may be identi-
fied and remedial measures may be taken to prevent the movement
of the toxic waste in the groundwater.
Excessive use of fertilisers, pesticides and insecticides are the main
non-point source of the pollution. These pollutants contribute to
the pollution of the groundwater as well as surface water. The
optional utilisation of fertilisers, pesticides and insecticides should
be encouraged for improving the water quality.
om Wetlands. —Wetlands"*, natural and man-made, freshwater or
brackish, provide numerous ecological services. They provide habitat to

18. The Ramsar Convention defines wetlands as, “areas of marsh,

fen, peatland or water,
whether natural or artificial, permanent or temporary, with water that
is static, or
flowing, fresh, brackish or salt, including areas of marine water the depth
of which
at low tide does not exceed six metres”, thereby giving a wide scope
to them.
2] NATIONAL ENVIRONMENT POLICY, 2006 547

aquatic flora and fauna, as well as numerous species of birds, includ-

ing migratory species. The density of birds, in particular, is an accurate
indication of the ecological health of a particular wetland. Several wet-
lands have sufficiently unique ecological character as to merit interna-
tional recognition as Ramsar sites.'? Wetlands also provide freshwater
for agriculture, animal husbandry, and domestic use, drainage services,
and provide livelihoods to fisher folk. Larger wetlands may also com-
prise an important resource for sustainable tourism and recreation2°.
They may be employed as an alternative to power, technology, and cap-
ital intensive municipal sewage plants; however, if used for this purpose
without proper reckoning of their assimilative capacity, or for dump-
ing of solid and hazardous waste, they may become severely polluted,
leading to adverse health impacts. The inadvertent introduction of some
alien species of flora in wetlands”! have also degraded their ecology.
Wetlands are under threat from drainage and conversion for agriculture
and human settlements, besides pollution. This happens because public
authorities or individuals having jurisdiction over wetlands derive lit-
tle revenues from them, while the alternative use may result in windfall
financial gains to them. However, in many cases, the economic values
of wetlands’ environmental services may significantly exceed the value
from alternative use. On the other hand, the reduction in economic value
of their environmental services due to pollution, as well as the health
costs of the pollution itself, are not taken into account while using them
as a waste dump. There also does not yet exist a formal system of wet-
land regulation outside the international commitments made in respect
of Ramsar sites. A holistic view of wetlands is necessary, which looks at
each identified wetland in terms of its causal linkages with other natural
entities, human needs, and its own attributes. The following actions will
be taken:
(a) Set up a legally enforceable regulatory mechanism for identified
valuable wetlands, to prevent their degradation and enhance their
conservation. Develop a national inventory of such wetlands.
(b) Formulate conservation and prudent use strategies for each signifi-
cant catalogued wetland, with participation of local communities,
and other relevant stakeholders.
(c) Formulate and implement eco-tourism strategies for identified
wetlands through multi-stakeholder partnerships involving public
agencies, local communities, and investors.
(d) Take explicit account of impacts on wetlands of significant develop-
ment projects during the environmental appraisal of such projects;

19. E.g., the Chilika Lagoon and the East Kolkata Wetlands.
20. E.g., the Dal lake (Srinagar), the Ootacamund lake, and the Nainital lake.
21. E.g., water hyacinth.
 [APP.
548 ENVIRONMENTAL LAW

in particular, the reduction in economic value of wetland envi-

ronmental services should be explicitly factored into cost-benefit
analyses. .
(e) Consider particular unique wetlands as entities with “incompara-
ble values”, in developing strategies for their protection.
(f) Integrate wetland conservation, including conservation of vil-
lage ponds and tanks, into sectoral development plans for pov-
erty alleviation and livelihood improvement, and link efforts for
conservation and sustainable use of wetlands with the ongoing
rural infrastructure development and employment generation pro-
grammes. Promote traditional techniques and practices for con-
serving village ponds.

Mountain ecosystems
Mountain ecosystems play a key role in providing forest cover, feeding
perennial river systems, conserving genetic diversity, and providing an
immense resource base for livelihoods through sustainable tourism. At
the same time, they are among the most fragile of ecosystems in terms
of susceptibility to anthropogenic shocks. There has been significant
adverse impact on mountain ecosystems by way of deforestation, sub-
mergence of river valleys, pollution of freshwater sources, despoliation of
landscapes, degradation of human habitat, loss of genetic diversity, plan-
tation of species not conducive to conservation of the mountain environ-
ment, retreat of glaciers and pollution. The most significant proximate
causes of these are illegal logging and commercial fuelwood collection,
besides faulty construction of infrastructure, unplanned urbanisation
and lack of enforcement of building bye-laws, absence or disrepair of
sanitation systems, setting up of polluting industries, large scale mining
of low unit value minerals, climate change, and excessive use of agricul-
tural chemicals. The underlying causes relate to absence of conducive
policies to enable local communities to derive adequate financial returns
from afforestation and non-consumptive use of forest resources, pricing
policies for agricultural chemicals, inadequate enforcement of pollution
standards, poor institutional capacities for urban and regional planning
and municipal regulatory functions, and preparation of environmental
impact assessments of infrastructure; besides absence of consensus on
means of financing municipal infrastructure. Clearly, there is need to
address these shortcomings through review of the relevant sectoral and
cross-sectoral policies, and institutional capacity building. Additionally,
the following elements of an action plan will be taken up:
1. Adopt appropriate land use planning and watershed management
practices for sustainable development of mountain ecosystems.
2] NATIONAL ENVIRONMENT POLICY, 2006 549

2. Adopt “best practice” norms for infrastructure construction in

mountain regions to avoid or minimise damage to sensitive ecosys-
tems and despoiling of landscapes.
3. Encourage cultivation of traditional varieties of crops and horticul-
ture by promotion of organic farming, enabling farmers to realise
a price premium.
4. Promote sustainable tourism through adoption of “best practice”
norms for tourism facilities and access to ecological resources, and
multi-stakeholder partnerships to enable local communities to gain
better livelihoods, while leveraging financial, technical, and mana-
gerial capacities of investors.
5. Take measures to regulate tourist inflows into mountain regions to
ensure that these remain within the carrying capacity of the moun-
tain ecology.
6. Consider particular unique mountain scapes as entities with
“incomparable values”, in developing strategies for their protection.

Coastal resources
Coastal environmental resources comprise a diverse set of natural and
man-made assets, including mangroves, coral reefs, estuaries, coastal
forests, genetic diversity, sand dunes, geomorphologies, sand beaches,
land for agriculture and human settlements, coastal infrastructure, and
heritage sites. These provide habitats for marine species, which, in turn,
comprise the resource base for large numbers of fisher folk, protection
from extreme weather events, a resource base for sustainable tourism,
and agricultural and urban livelihoods. In recent years there has been
significant degradation of coastal resources, for which the proximate
causes include poorly planned human settlements, improper location of
industries and infrastructure, pollution from industries and settlements
and overexploitation of living natural resources. In the future, sea level
rise due to climate change may have major adverse impacts on the coastal
environment. The deeper causes of these proximate factors lie in inade-
quate institutional capacities for, and participation of local communities
in, formulation and implementation of coastal management plans, the
open access nature of many coastal resources, and lack of consensus
on means of provision of sanitation and waste treatment. The following
further actions will be taken up:
1. Mainstream the sustainable management of mangroves into the
forestry sector regulatory regime, ensuring that they continue to
provide livelihoods to local communities.
2. Disseminate available techniques for regeneration of coral reefs,
and support activities based on application of such techniques.
 ENVIRONMENTAL LAW [APP.
550

3. Explicitly consider sea-level rise and vulnerability of coastal areas

to climate change and geological events, in coastal management
plans, as well as infrastructure planning and construction norms.
4. Adopt a comprehensive approach to Integrated Coastal Manage-
ment by addressing linkages between coastal areas, wetlands, and
river systems, in relevant policies, regulation, and programs.
5. Develop a strategy for strengthening regulation and addressing
impacts, of ship-breaking activities on human health, and coastal
and near marine resources.

Pollution abatement
Pollution is the inevitable”? generation of waste streams from the produc-
tion and consumption of anything. Pollution directly impacts the quality
of the receiving medium, i.e. air, water, soil, or electromagnetic spec-
trum, and when this impaired medium acts upon a receptor, say, a living
being, also impacts the receptor. In general, the impacts on the receptor
are adverse, but not always.?> Typically, ecosystems have some natural
capacities to assimilate pollution; however, these vary considerably with
the nature of the pollutant and the ecosystem. In general, it is cheaper
to reduce the emissions of pollution, than to mitigate it after generation,
or to treat the receiving medium or receptor. The impacts of pollution
may differentially impact the poor, or women, or children, or developing
regions, who may also have relatively low contributions to its generation,
and accordingly the costs and benefits of abatement may have important
implications for equity.
t. Air pollution.— Air pollution may have adverse impacts on human
health, as well as on the health of other living entities, man-made her-
itage, and life-support systems, such as global climate. Depending upon
the lifetime of the pollutants, the location of the source, and the pre-
vailing air currents, the receptors may be located at homestead, local,
regional, or global levels, at time intervals from near instantaneous, to
several decades. The direct causes of air pollution are emissions from
the use of fossil energy, and other industrial processes, and some con-
sumption activities. The deeper causes arise in a multiplicity of policy,
and institutional, including regulatory shortcomings, in particular, inef-
ficient pricing of fossil fuel based energy. Indoor air pollution, a special
22. “Inevitable”, as a consequence of the operation of a fundamental natural law, that of
increase in entropy of systems taken together with their surroundings, a derivation
from the second law of thermodynamics. “Inevitable”, however, does not mean that
waste generation cannot be reduced (up to a point) within the limits given by natural
law, or rendered to less harmful forms or recycled.
23. For example, several organic waste streams may have adverse impacts on
human
health if ingested, but may have value as plan fertiliser.
2] NATIONAL ENVIRONMENT POLICY, 2006 551

case, arises from the low societal status of women, leading to continued
use of polluting, inefficient biomass stoves, besides pricing policies for
agricultural chemicals which lead to substitution of biomass based fertil-
iser by chemicals, the biomass then being used inefficiently as fuel. These
deeper causes need to be addressed through policies and programmes for
redressing women’s status, and dialogue aimed at consideration of the
environmental impacts of pricing policies for agricultural chemicals. In
addition, the following specific actions will be taken:
(a) Take an integrated approach to energy conservation and adoption
of renewable energy technologies, including hydropower, by appro-
priately linking efforts to improve conversion, transmission, distri-
bution and end-use efficiency, and R&D in, and dissemination of
renewable energy technologies. Remove policy, legal, and regula-
tory barriers to setting up decentralised generation and distribution
systems for power and other secondary energy forms, based on
local primary energy resources.
(b) Accelerate the national programmes of dissemination of improved
fuel wood stoves, and solar cookers, suited to local cooking prac-
tices and biomass resources.
(c) Strengthen the monitoring and enforcement of emission standards
for both point and non-point sources.
(d) Prepare and implement action plans for major cities for addressing
air pollution for both point and non-point sources, relying on a
judicious combination of fiats and incentive based instruments.
(e) Formulate a national strategy for urban transport to ensure ade-
quate investment, public and private, in low pollution mass trans-
port systems.
(f) Promote reclamation of wastelands by energy plantations for rural
energy through multi-stakeholder partnerships involving the land
owning agencies, local communities, and investors.
(g) Strengthen efforts for partial substitution of fossil fuels by bio-fuels,
through promotion of biofuels plantations, promoting relevant
research and development, and streamlining regulatory certifica-
tion of the new technologies.
2. Water pollution.—The direct and indirect causes of pollution of
surface (river, wetlands) water sources, groundwater, and coastal areas
have been discussed above. The following comprise further elements of
an action plan:
(a) Develop and implement, initially on a pilot scale, public-private
partnership models for setting up and operating effluent and sew-
age treatment plants. Once the models are validated, progressively
use public resources, including external assistance, to catalyse such
552 ENVIRONMENTAL LAW [APP.

partnerships. Enhance the capacities of municipalities for recovery

of user charges for water and sewage systems.
(b) Prepare and implement action plans for major cities for addressing
water pollution, comprising regulatory systems relying on a appro-
priate combination of fiats and incentive based instruments, pro-
jects implemented through public agencies as well as public-private
partnerships for treatment, reuse, and recycle where applicable,
of sewage and wastewater from municipal and industrial sources,
before final discharge to water bodies.
(c) Take measures to prevent pollution of water bodies from other
sources, especially waste disposal on lands.
(d) Enhance capacities for spatial planning among the State and local
governments, with adequate participation by local communities, to
ensure clustering of polluting industries to facilitate setting up of
common effluent treatment plants, to be operated on cost recovery
basis. Ensure that legal entity status is available for common efflu-
ent treatment plants to facilitate investments, and enable enforce-
ment of standards.
(e) Promote R&D in development of low cost technologies for sewage
treatment at different scales, in particular, replication of the East
Kolkata wetlands and other bio-processing based models for sew-
age treatment, to yield multiple benefits.
(f) Take explicit account of groundwater pollution in pricing policies
of agricultural inputs, especially pesticides, and dissemination of
agronomy practices. Encourage Integrated Pest Management and
use of biodegradable pesticides.
3. Soil pollution.—Similarly, the immediate and deeper causes of soil
pollution have been considered above. Management of industrial and
municipal waste is the major cause of soil pollution and is a serious chal-
lenge in terms of magnitude and required resources. An action plan will
comprise:
(2) Develop and implement viable models of public-private partner-
ships for setting up and operating secure landfills, incinerators
and other appropriate techniques for the treatment and disposal
of toxic and hazardous waste, both industrial and biomedical, on
payment by users, taking the concerns of local communities into
account. The local communities and State Governments concerned
must have clear entitlements to specified benefits from hosting such
sites, if access is given to non-local users. Develop and implement
strategies for clean up of toxic and hazardous waste dump legacies,
in particular in industrial areas, and abandoned mines, and recla-
mation of such lands for future, sustainable use.
 2| NATIONAL ENVIRONMENT POLICY, 2006 553

Survey and develop a. national inventory of toxic and hazardous

waste dumps, and an online monitoring system for movement of
hazardous wastes. Strengthen capacities of institutions responsible
for monitoring and enforcement in respect of toxic and hazardous
wastes.
Strengthen the legal arrangements and response measures for
addressing emergencies arising out of transportation, handling,
and disposal of hazardous wastes, as part of the chemical accidents
regime.
Strengthen the capacities of local bodies for segregation, recycling,
and reuse of municipal solid wastes recognising, inter alia, the pos-
itive impacts it may have on the welfare of safai-karamcharis and
setting up and operating sanitary landfills, in particular through
competitive outsourcing of solid waste management services.
Give legal recognition to, and strengthen the informal sector
systems of collection and recycling of various materials. In par-
ticular, enhance their access to institutional finance and relevant
technologies.
Promote organic farming of traditional crop varieties through
research in and dissemination of techniques for reclamation of land
with prior exposure to agricultural chemicals, facilitating market-
ing of organic produce” in India and abroad, including by develop-
ment of transparent, voluntary, science-based labelling schemes.
Promote biodegradable and_ recyclable substitutes for
non-biodegradable materials, and develop and implement strate-
gies for their recycle, reuse, and final environmentally benign dis-
posal, including through promotion of relevant technologies, and
use of incentive based instruments.
Develop and enforce regulations and guidelines for management of
e-waste, as part of the hazardous waste regime.
Promote, through incentives, removal of barriers, and regula-
tion, the beneficial utilisation of generally non-hazardous waste
streams such as fly ash, bottom ash, red mud, and slag, including
in cement and brick making, and building railway and highway
embankments.
4. Noise pollution.—Persistent exposure to elevated noise levels has
been established to result in significant adverse health impacts. While
in many instances, the identification of a particular sound as “noise” is
unambiguous, in the case of others, such as “music” or “chanting” or
“fireworks displays”, it is inherently subjective. In all such cases, soci-
etal well-being would require that exposure levels to third parties be

24. There is considerable evidence of consumer preference for organic produce which
thereby may command substantial premium.
554. ENVIRONMENTAL LAW [APP.

maintained below levels at which significant adverse health impacts may

occur. At the same time, it needs to be understood that certain envi-
ronments in which people choose to live and work necessarily involve a
certain level of noise. The following will comprise elements of an action
plan on abatement of noise pollution:
(a) Make appropriate distinctions between different environments in
terms of setting ambient noise standards, for example, rural versus
urban; educational and medical establishments versus other areas,
night-time versus daytime in residential areas, areas in the vicinity
of road, rail, airport infrastructure, and protected areas, etc.
(b) Distinguish between noise standards in the context of occupational
exposure (with protection measures), and environmental exposure
to third parties.
(c) Formulate noise emissions norms (e.g., loudspeaker, automobile
horns, fireworks ratings) appropriate to various activities to ensure
that exposure levels to third parties who are not participants in the
activity do not exceed prescribed ambient standards.
(d) Include ambient noise as among the environmental quality param-
eters to be routinely monitored in specified urban areas.
(e) Encourage dialogue between State/Local Authorities and religious/
community representatives on the adoption of enforceable dura-
tions, timings, and use of loudspeakers/fireworks, etc., in case
temporary exceedance of prescribed ambient noise standards for
observance of traditional religious/cultural/social events cannot be
avoided.

Conservation of man-made heritage

Man-made heritage reflects the prehistory, history, ways of living, and
culture, of a people. In the case of India, such heritage is at the core of
our national identity. At the same time, considerable economic value,
and livelihoods may be derived from conservation of man-made heritage
and their sustainable use, through realisation of their tourism potential.
The criteria for, and processes of identification of heritage sites, besides
legislation and fiscal measures to ensure that they are not damaged or
converted by direct human interference, are outside the scope of the NEP.
However, the impact of environmental quality on their conservation is
an environmental policy concern. Heritage sites may be impacted by pol-
lution, or they may face threats of inundation or conversion by develop-
ment projects. Several prominent heritage sites may be held to possess
“incomparable values”. The following action points will be pursued:
1. In setting ambient environmental standards, especially for air qual-
ity, the potential impacts on designated heritage sites must be taken
into account.
2] NATIONAL ENVIRONMENT POLICY, 2006 555

2. Heritage sites considered to have “incomparable values” would

merit stricter standards than otherwise comparable situations and
particular attention should be paid to monitoring and enforcement
of environmental standards in their case. Integrated regional devel-
opment plans should be drawn up, with participation of the local
community, to shift polluting activities or render them much less
polluting, to treat waste streams, to review transportation options,
and adopt building norms which maintain the overall heritage
ambience of the area.
3. Impacts on designated heritage sites must be considered at the
stage of developing the terms of reference for environmental impact
assessments of projects, and consideration given to the potential
impacts during appraisal, in terms of the objectives and principles
of the NEP.

Climate change
Climate change, resulting from anthropogenic emissions of a suite of
gases (called “greenhouse gases” or GHGs) due to fossil fuel use, certain
agricultural and industrial activities, and deforestation, leading to their
increasing concentrations in the atmosphere, has the potential, over the
next few generations, to significantly alter global climate. This would
result in large changes in ecosystems, leading to possibly catastrophic
disruptions of livelihoods, economic activity, living conditions and
human health. On the other hand, abatement of GHGs, would involve
significant economic costs. While climate change is a global environ-
mental issue, different countries bear different levels of responsibility
for increase in atmospheric GHGs concentrations. Further, the adverse
impacts of climate change will fall disproportionately on those who have
the least responsibility for causing the problem, in particular, developing
countries, including India. India’s GHG emissions in 1994 were 1228
million ton (Mt) CO equivalent”>, which is below 3 per cent of global
GHG emissions. In per capita terms, it is 23 per cent of the global aver-
age, and 4 per cent of the US, 8 per cent of Germany, 9 per cent of
UK, and ro per cent of Japan, per capita emissions in 1994. In terms of
the GHG intensity of the economy, in purchasing power parity terms,
India emitted a little above 0.4 ton CO equivalent per 1000 US dollars
in 2002, which is lower than the global average. In terms of primary
energy use, India’s share of renewable energy (being a non GHG emitting
energy form) at 36 per cent is far higher than industrialised countries

25. India’s initial National Communication to the UN Framework Convention on

Climate Change (UNFCCC), 2004.
556 ENVIRONMENTAL LAW [APP.

can hope to reach in many decades. Since GHG emissions are directly
linked to economic activity, India’s economic growth will necessarily
involve increase in GHG emissions from the current extremely low lev-
els. Any constraints on the emissions of GHG by India, whether direct,
by way of emissions targets, or indirect, will reduce growth rates. On
the other hand, India’s policies for sustainable development, by way of
promotion of energy efficiency, appropriate mix of fuels and primary
energy sources including nuclear, hydro and renewable sources, energy
pricing, pollution abatement, afforestation, mass transport, besides dif-
ferentially higher growth rates of less energy intensive services sectors as
compared to manufacturing, results in a relatively GHGs benign growth
path. Anthropogenic climate change, significant responsibility for which
clearly does not lie with India or other developing countries, may, on the
other hand, have likely adverse impacts on India’s precipitation patterns,
ecosystems, agricultural potential, forests, water resources, coastal and
marine resources, besides increase in range of several disease vectors.
Large-scale resources would clearly be required for adaptation meas-
ures for climate change impacts, if catastrophic human misery is to be
avoided. Accordingly, the following will comprise essential elements of
India’s response to climate change:
1. Adherence to the principle of common but differentiated responsi-
bilities and respective capabilities of different countries in respect
of both mitigation of GHGs, and adaptation measures.
2. Reliance on multilateral approaches, as opposed to bilateral or
plurilateral or unilateral measures.
3. Equal per capita entitlements of global environmental resources to
all countries.
4. Overriding priority of the right to development.
5. Identify key vulnerabilities of India to climate change, in particular
impacts on water resources, forests, coastal areas, agriculture, and
health.
6. Assess the need for adaptation to future climate change, and the
scope for incorporating these in relevant programmes, including
watershed management, coastal zone planning and regulation,
forestry management, agricultural technologies and practices, and
health programmes.
7. Encourage Indian industry to participate in the Clean Development
Mechanism (CDM) through capacity building for identifying and
preparing CDM projects, including in the financial sector.
8. Participate in voluntary partnerships with other countries both
developed and developing, to address the challenges of sustainable
development and climate change, consistent with the provisions of
the UN Framework Convention on Climate Change.
2] NATIONAL ENVIRONMENT POLICY, 2006 557

Environmental standards, management systems, certification,

and indicators
Environmental standards
Environmental standards refer both to the acceptable levels of spec-
ified environmental quality parameters at different categories of loca-
tions (“ambient standards”), as well as permissible levels of discharges
of specified waste streams by different classes of activities (“emission
standards”). It is now well understood that environmental standards
cannot be universal, and each country should set standards in terms of
its national priorities, policy objectives, and resources. These standards,
may, of course, vary (in general, become more stringent) as a country
develops, and has greater access to technologies and financial resources
for environmental management. While within the country different
States, Union Territories and local bodies may adopt stricter standards,
based on local considerations, they would require concurrence of the
Central Government to ensure adherence to the provisions of this pol-
icy. Environmental standards also need to relate to other measures for
risk mitigation in the country, so that a given societal commitment of
resources for achieving overall risk reduction*® yields the maximum
aggregate reduction in risk. Specific considerations for setting ambient
standards in each category of location (residential, industrial, environ-
mentally sensitive zones, etc.) include the reductions in potential aggre-
gate health risks (morbidity and mortality combined in a single measure’’)
to the exposed population; the risk to sensitive, valuable ecosystems and
man-made assets; and the likely societal costs, of achieving the pro-
posed ambient standard. Similarly, emissions standards for each class of
activity need to be set on the basis of general availability of the required
technologies”®, the feasibility of achieving the applicable environmental
quality standards at the location (specific or category) concerned with
the proposed emissions standards, and the likely unit costs of meeting
the proposed standard. It is also important that the standard is specified
in terms of quantities of pollutants that may be emitted, and not only by
concentration levels, since the latter can often be easily met through dilu-
tion, with no actual improvement in ambient quality. The tendency to

26. Environmental quality is not the only source of societal risk; virtually every activity
of humans is fought with risk. Other sources of risk, which may be regulated, include
safety standards for vehicles, aircraft, water, food and pharma, contagious diseases
(quarantine and immunisations), etc. Risk mitigation in each case involves societal
costs; these must be weighed against benefits.
27. E.g., “Disability Adjusted Life Years” (DALY).
28. Specifically, that a range of technologies from numerous vendors should be available,
to preclude windfall gains to one or a small set of manufacturers and resultant high
costs of technologies.
 [APP.
558 ENVIRONMENTAL LAW

, since
prescribe specific abatement technologies should also be eschewed
g
these may unnecessarily increase the unit and societal costs of achievin
the ambient environmental quality, and in any case because a technology
that is considered ideal for meeting a given emission standard may not be
acceptable on other relevant parameters, including possibly other sources
of societal risk. The following specific actions will be taken:
r. Set up a permanent machinery comprising experts in all relevant
disciplines to review notified ambient and emissions standards in
the light of new scientific and technological information as they
become available, and changing national circumstances, ensuring
adequate participation by potentially impacted communities, and
industry associations.
2. Strengthen the testing infrastructure and network for monitoring
ambient environmental quality, including through participation by
local communities, and public-private partnerships. Progressively
ensure real-time, and on-line availability of the monitoring data.

Environmental management systems, ecolabelling

and certification
Environmental Management Systems (EMS), such as ISO 14000, by
requiring the adoption of standardised environmental management prac-
tices, documenting their actual use, and credible third party verification
of the fact, may significantly ease the public burden of monitoring and
enforcement of prescribed emissions standards. On the other hand, their
adoption may involve transaction costs, which, for small and medium
enterprises may be significant in relation to their total investment. Global
harmonisation of EMS”?, however, is a safeguard against adoption of arbi-
trary national EMS regimes to serve as non-tariff barriers. Ecolabelling
(and other voluntary certification mechanisms) differ from the EMS in
that they address the preferences of environmentally conscious consum-
ers, rather than ensuring adherence to national environmental standards.
They may involve review of the entire product cycle, from sourcing raw
materials, to final disposal of the product after use, and since they are
concerned primarily with consumer preferences, may relate to external
or ad-hoc, rather than national environmental standards. Further, at
present, non-public bodies have established several labelling schemes in
India’s export destinations, with no satisfactory evidence of being based
on scientific knowledge, or participation by the potentially affected pro-
ducers. Moreover, they may be based on prescriptions of production pro-
cesses, and not only of the product characteristics, and for this reason,

29. Global harmonisation of EMS, however, relates to achievement of national, not

externally imposed emission standards.
2| NATIONAL ENVIRONMENT POLICY, 2006 559

their mandatory application is inconsistent with provisions of the WTO

regime. Ecolabels, etc., clearly have the potential to be employed as trade
barriers, at least by competing firms in the export destinations, if not
directly by their governments. The obtaining of an ecolabel, especially
one granted by an agency located in a developed country, may involve
large transactions costs. However, ecolabelled products may command
significant price premia, as well as ease of entry to markets. On the other
hand, the fact of a large, rapidly growing, environmentally conscious
consumer base in India itself, may provide the required leverage to realise
significant advantages from mutual recognition of ecolabelling schemes.
The following actions will be taken:
1. Encourage industry associations to promote the adoption of ISO
14000 among their members, through provision of technical and
training support. Mainstream promotion of ISO r4o0oo in the
small-scale sector in the various promotion schemes for the sector.
2. Encourage adoption of EMS through purchase preference for ISO
14,000 goods and services for government procurement, except for
items reserved for the small-scale sector at any given time. Mandate
ISO 14000 when a sufficient number of domestic suppliers for each
good or service have ISO 14000 certification.*°
3. Formulate “good practice guidelines” for ecolabels to enhance their
scientific basis, transparency, and requirements of participation.
Promote the mutual recognition of Indian and foreign ecolabels,
which adhere to the good practice guidelines, to ensure that Indian
exporters enhance their market access at lower costs.
4. Promote “good practices” norms in all relevant sectors to con-
serve natural resources and reduce adverse environmental impacts,
covering siting, choice of materials, use of appropriate energy effi-
ciency and renewable energy options, and addressing solid wastes
generation, effluents and sewage handling, gaseous emissions, and
noise.

Clean technologies and innovation

Clean technologies, as distinct from “end-of-pipe” abatement technol-
ogies minimise the generation of waste streams in the production pro-
cesses and utilise waste from other consumption goods and production
processes, rather than treating the waste after generation. In general,
clean technologies are less intensive in use of raw materials and energy,
than conventional technologies, which rely on pollution abatement
after generation. For this reason, they may also offer significant cost
30. Even forms which sell only part of their output to government may be expected to
obtain ISO 14000 certification, since it would not be cost effective for them to main-
tain separate production lines for certified and non-certified products.
560 ENVIRONMENTAL LAW [APP.

advantages to the producer. Barriers to the adoption of clean technolo-

gies are, first, the fact that many of them are proprietary, and protected
by strong patent regimes held abroad. The vendors, accordingly, would
be able to extract large premiums in the absence of competitive substi-
tutes. In such cases a project specific approach will be adopted in respect
of enhancing market access. Second, lack of capacity in development
financial institutions for appraisal of proposals for switching existing
production facilities to clean technologies. Third, the lack of coordina-
tion in R&D efforts in India aimed at developing a shelf of commercially
viable clean technologies. The last should also be viewed against the fact
that in future, almost all commercial transfers of production technology
worldwide may be for clean technologies. The following will comprise
elements of an action plan: |
1. Encourage capacity building in the financial sector for appraising
clean technology switchover project proposals.
2. Set up a mechanism to network technology research institutions
in the country, public and private, for cooperation in technology
research and development and adaptation, information, and evalu-
ation of clean technologies. Create a database of such technologies,
and promote dissemination of new technologies developed both in
India and abroad.
3. Consider use of revenue enhancing fiscal instruments to promote
shifts to clean technologies in both existing and new units.
4. Promote adoption of clean technologies by industry, in particu-
lar in the small and medium sector, through regulatory and fiscal
measures, and standards setting.

Environmental awareness, education, and information

Enhancing environmental awareness is essential to harmonise patterns
of individual behaviour with the requirements of environmental conser-
vation. This would minimise the demands placed on the monitoring and
enforcement regimes; in fact, large-scale non-compliance would simply
overwhelm any feasible regulatory machinery. Awareness relates to the
general public, as well as specific sections; for example, the youth, ado-
lescents, urban dwellers, industrial and construction workers, municipal
and other public employees, etc. Awareness involves not only internalisa-
tion of environmentally responsible behaviour, but also enhanced under-
standing of the impacts of irresponsible actions, including public health,
living conditions, sanitation, and livelihood prospects. Environmental
education is the principal means of enhancing such awareness, both
among the public at large, and among focused groups. Such education
may be formal, or informal, or a combination of both. It may rely on
2] NATIONAL ENVIRONMENT POLICY, 2006 561

educational institutions at different levels; the print, electronic, or live

media; and various other formal and informal settings. Several steps
to expand and enrich the content of the environment awareness and
education programmes have been taken. The Supreme Court has also
mandated that environmental education must be imparted at all levels,
including higher education in the formal system. However, there is need
for further strengthening the existing programmes and making them
more inclusive and participatory. Access to environmental information
is the principal means by which environmentally conscious stakeholders
may evaluate compliance by the parties concerned with environmental
standards, legal requirements, and covenants. They would thereby be
enabled to stimulate necessary enforcement actions, and through cen-
sure, motivate compliance. Access to information is also necessary to
ensure effective, informed participation by potentially impacted publics
in various consultation processes, such as for preparation of environmen-
tal impact assessments, and environment management plans of devel-
opment projects. The National Natural Resources Management System
was set up in 1983 for optimally managing the natural resources and
environment of the country using an optimal mix of remote sensing and
conventional techniques. Remote sensing and data, both satellite and
aerial, is being used extensively in the country for mapping and manag-
ing the natural resources and environment, over the past three decades.
The following actions will be taken:
1. Develop and operate an online, real time, publicly accessible envi-
ronmental information system to provide all relevant information
on key environmental resources and parameters, including ambi-
ent quality, as well as major point sources of pollution, and make
archival data available in convenient format.
2. Further promote the use of remote sensing data to provide valuable
inputs on the extent and quality of forests, wildlife habitats, bio-
diversity, wastelands, wetlands, groundwater, deserts, rivers, etc.,
and monitor pollution and its impacts.
3. Mainstream scientifically valid environment content in the curric-
ula of formal education, at primary, secondary, tertiary, and pro-
fessional levels, focusing on the content appropriate at each stage,
and without increasing the course load overall, besides non-formal
programmes, such as adult education. Special mid-career training
programmes may be conducted for groups with special respon-
sibilities; for example, the judiciary, policy-makers, legislators,
industrial managers, city and regional planners, and voluntary and
community based organisations.
4. Prepare and implement a strategy for enhancing environmen-
tal awareness among the general public, and special groups,
562 ENVIRONMENTAL LAW [AP P.

by professional production and airing of information products

through diverse media catering to the different target groups. The
media products should, as far as possible, eschew focusing on the
achievements of public agencies, but instead document real world
events of human interest. The production, as well as dissemination
may involve public, private, and voluntary agencies. Ensure that
adequate financial resources are available for the purpose.

Partnerships and stakeholder involvement

Conservation of the environment requires the participation of multiple
stakeholders, who may bring to bear their respective resources, com-
petencies, and perspectives, so that the outcomes of partnerships are
superior to those of each acting alone. Implementing and policy-making
agencies of the government, at Central, State, municipal, and panchayat
levels; the legislatures and judiciary; the public and private corporate sec-
tors; financial institutions; industry associations; academic and research
institutions; independent professionals and experts; the media; youth
clubs; community based organisations; voluntary organisations; and
multilateral and bilateral development partners, may each play impor-
tant roles in partnerships for the formulation, implementation, and pro-
motion of measures for environmental conservation. Institutions of local
self-government have an important role in management of the environment
and natural resources. The 73rd and 74th Constitutional Amendments
provide the framework for their empowerment. Further policy and leg-
islative changes are necessary to enable them to actually realise such a
role, and participate in various partnerships in this context. A number
of specific themes for partnerships have been identified above. A generic
classification of some, not exhaustive, possible partnerships is as follows:
1. Public-community partnerships, by which public agencies and local
communities cooperate in the management of a given environmen-
tal resource, each partner bringing agreed resources, assuming
specified responsibilities, and with defined entitlements; for exam-
ple, Joint Forestry Management.
2. Public-Private Partnerships, by which specified public functions
with respect to environmental management are contracted out
competitively to private providers; for example, monitoring of envi-
ronmental quality.
3. Public-Community-Private Partnerships, in terms of which the
partners assume joint responsibility for a particular environmenta
l
function, with defined obligations and entitlements for
each, with
competitive selection of the private sector partner; for exam
ple,
afforestation of degraded forests.
2| NATIONAL ENVIRONMENT POLICY, 2006 563

4. Public-voluntary organisation partnerships, similar to pub-

lic-private partnerships, in respect of functions in which voluntary
organisations may have a comparative advantage over others, the
voluntary organisations, in turn, being selected competitively; for
example, environmental awareness raising.
5. Public-private-voluntary organisation partnerships, in which the
provision of specified public responsibilities is accomplished on
competitive basis by the private sector, and the provision is moni-
tored by competitively selected voluntary organisations; for exam-
ple, “build, own, operate” sewage and effluent treatment plants.
6. It is also essential that all partnerships are realised through, and
are carried out in terms of the principles of good governance, in
particular, transparency, accountability, cost effectiveness, and
efficiency.
7. Youth constitute the most vibrant segment of the country’s pop-
ulation. Their strength needs to be harnessed and channelised in
protection and conservation of environment. They also need to be
involved in relevant stakeholder participation.

Capacity building
The multi-stakeholder character of environmental issues and continuous
developments in the field of environment, make it necessary to have a
continuing focus on capacity building in all institutions concerned: pub-
lic, private, voluntary, academic, research, and the media. The following
actions are necessary:
1. Review the present institutional capacities at the Central and State
levels, in respect of enforcement of environmental laws and regula-
tions. Prepare and implement suitable programs for enhancement
of the capacities, as required.
2. Incorporate in all environmental programmes a capacity develop-
ment component, with sufficient earmarked funds.
3. Ensure continuous up-gradation of knowledge and skills of the sci-
entific and technical personnel involved in environmental manage-
ment in public institutions at all levels: Central, State, and local,
through dedicated capacity building programs.

Research and development

In order to rapidly advance scientific understanding of environmental
issues, it is necessary to promote properly focused research by competent
institutions. A continuous engagement with the scientific community, in
government, academic, and private institutions, will provide important
 [APP.
564. ENVIRONMENTAL LAW

insights for policy-making and regulation, including in the field of mul-

tilateral negotiations, and help realise deeper and broader skills in the
scientific community. Key areas of research are as follows (not in order
of priority, which is changeable over time):
1. Taxonomies of living natural resources.
2. Research leading to better understanding of ecological processes
and pathways.
Qe
Research which provides direct inputs to policy-making.
4. R&D in technologies for environmental management and clean
production. The following actions would be taken:
(a) Periodically identify and prioritise areas for research.
(b) Establish a research programme in priority areas within the
government, with expected outputs clearly specified.
(c) Encourage research in priority areas outside the government,
with necessary financial and institutional support.

International cooperation
India has participated in major international events on the environment,
since 1972. The country has contributed to, and ratified several key
multilateral agreements on environmental issues in recognition of the
transboundary nature of several environmental problems, and has com-
plied with its commitments. It has also participated in numerous regional
and bilateral programs for environmental cooperation. Given the need
to enhance our own capacities to comply with our commitments, and
ensure sustained flows of resources for environmental management, the
following steps would be taken:
t. Avail of multilateral and bilateral cooperation programs, for capac-
ity building for environmental management, particularly in rela-
tion to commitments under multilateral instruments.
2. Participate in mechanisms and arrangements under multilat-
eral agreements for enhancing flows of resources for sustainable
development.
3. Provide assistance to other developing countries, in particular
for scientific and technical capacity building for environmental
management.

Review of the policy

We live in a rapidly changing global community, in a rapidly developing,
highly diverse country. The environmental issues that are salient as of
now may evolve over time, and new ones may take their place. Scientific
understanding of environmental matters would advance rapidly. Changes
2] NATIONAL ENVIRONMENT POLICY, 2006 565

in economic structure, technologies, resource availability, in each case

nationally as well as globally, are likely, as are evolution of global envi-
ronmental regimes, and norms arising from jurisprudence. To set forth
an immutable NEP in this dynamic situation would be unwise. A pru-
dent course would be to provide for updating every few years in light of
new knowledge and developments, and a comprehensive review in about
a decade. The following provisions are, accordingly made for review,
updating and renewal of the NEP:
1. Undertake consultations every three years with groups of diverse
stakeholders, i.e. researchers and experts, community based organ-
isations, industry associations, and voluntary organisations, and
update the NEP.
2. In the third of the three-year reviews, undertake a more compre-
hensive examination of the scientific and policy understanding of
environmental issues, redefine the objectives and principles, and
recast the strategic themes for action. A new NEP should be the
outcome.

Review of implementation
Any policy is only as good as its implementation. The NEP outlines a
significant number of new and continuing initiatives for enhancing envi-
ronmental conservation. These require the coordinated actions of diverse
actors, for the major part organised and stimulated by one or more pub-
lic agencies. While coordination and review mechanisms are necessary in
respect of the individual action plans under each of the strategic themes
at relevant operational levels, a formal, periodic high level review of
implementation of the different elements of the NEP is essential. This
would enhance accountability of the different public agencies responsible
for implementation. It would also reveal practical issues in implementa-
tion, including absence of political will at levels concerned, or official
indifference. Accordingly, the Cabinet or a nominated committee of the
Cabinet may be requested to review the implementation of the NEP, once
a year, within three months from the close of the previous fiscal year. The
findings of the review should be publicly disclosed, so that stakeholders
are assured of the seriousness of the government in ensuring implemen-
tation of the policy.
 APPENDIX 3
Towards a Greener Tomorrow
[Paper presented by Yatindra SinghJ, Allahabad High
Court, Allahabad at the Workshop on “Judicial Enforcement
of Environmental Law” organised by Centre for Environment
Education-North (Lucknow) and Environmental Law Institute
(Washington DC, US), in collaboration with Judicial Training and
Research Institutes, UP (Lucknow) on 19 October 2003.|!

The last century was the century of physicists, but this is no longer true.
This century is the century of biologist, a century of environmentalists.
Environmental problems and issues will play crucial role in this century.
We cannot march towards a brighter tomorrow unless we understand
and solve them.

THE CASES AND THE PRINCIPLES

The environment jurisprudence has moved forward with public interest
litigation (PIL). Let’s briefly consider the cases and the principles estab-
lished therein.

“Vellore Citizens’ Welfare Forum v. Union of India”

This case was filed against the pollution caused by discharge of untreated
effluents by the tanneries and other industries in Tamil Nadu. The court
explained that sustainable development as a concept came to be known
in the Stockholm Declaration of 1972. It was given definite shape in
1987 by the World Commission on Environment and Development? in
its report, “Our Common Future”. This commission was chaired by the
then Prime Minister of Norway Ms GH Brundtland‘ and this report is
1. This paper has been updated since then.
2. (1996) 5 SCC 647: AIR 1996 SC 2715.
3. It was commission’s recommendation that led to the Earth Summit—the United
Nations Conference on Environment and Development (UNCED) in Rio de
Janeiro in 1992.
4. Ms Brundtland is a medical doctor and was Prime Minister of Norway for ro years.
She stepped down as a Prime Minister to become Director General of World Health
Organisation.
568 ENVIRONMENTAL LAW |APP.

means that the

known as “Brundtland Report”. Sustainable development
romising
development should meet the needs of the present without comp
ures are
the ability of the future to meet their own needs. Its salient feat
inter-generational equity,
use and conservation of natural resources,
environmental protection,
precautionary principle,
polluter pays principle,
obligation to assist and cooperate,
Ya
eye
et
ley eradication of poverty, and
8. financial assistance to the developing countries.
The court accepted the precautionary principle and elaborated it as
follows:
1. Environmental measures must anticipate, prevent and attack the
cause of environmental degradation.
2. Where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
3. The onus of proof is on the actor or the developer/industrialist to
show that his action is environmentally benign.

“Indian Council for Enviro-Legal Action v. Union of India”?

Chemical industries in village Bicchieri district, Udaipur, Rajasthan were
releasing toxic effluents damaging the earth and water. They were closed
but no action was taken to undo the damage done by them. This case was
filed for remedial action. The Supreme Court accepted the principle of
polluter pays which means that the financial cost of preventing or reme-
dying damage lies with the undertaking causing the pollution. It cannot
be saddled with the government, as it would shift to the taxpayers.

“M.C. Mehta v. Kamal Nath’”é

M/s Span Motels was given lease on 29 September 1972 of about 40
bighas and 3 biswa of land for a period of 99 years from 1 October 1972
to 1 October 2071. By 1981, almost all shares of this motel were taken
over by the family of Kamal Nath and on 29 November 1981, a fresh
lease for the same period was executed. By the time, the motel also ille-
gally occupied forest land. Subsequently, when Kamal Nath was Minister
in charge of Ministry of Environment and Forest (MoEF), the Central
Government of India, MoEF granted approval on 24 November 1993, for

5. (1996) 3 SCC 212: AIR 1996 SC 1446.

6. (1997) 1 SCC 388.
3] TOWARDS A GREENER TOMORROW 569

grant of further lease of 27 bighas and 12 biswa of land: the same land
which was illegally occupied by the motel. The lease of this area was exe-
cuted by the Himachal Pradesh Government on 11 April 1994. A news
item was published in the Indian Express on 25 February 1996 in which
it was pointed out that the motel has made constructions over forest land
after encroaching it and it is being regularised. It was further reported
that course of river Beas is being changed. The Supreme Court took suo
motu action and held that the leases were illegal; it cancelled the lease
granted on 11 April 1994. The court applied the public trust doctrine
which means that the State is a trustee of all natural resources for the
benefit of the public and is under legal duty to protect it.

“T.N. Godavarman Thirumulpad v. Union of India”’

The Supreme Court held that Forest Conservation Act, 1980 was
enacted to check deforestation. It applies to all forests irrespective of
nature of their ownership or classification. It includes forests desig-
nated as reserved, private or otherwise and prior approval of the Central
Government is required for any non-forest activity within the area of
any forest. Deforestation causes ecological imbalance: forests, trees and
biodiversity are to be protected.

“M.C. Mehta v. Union of India”® (“Oleum Gas Leakage case”)

Oleum gas leaked from Shriram Food and Fertilizers factory in
December 1985 and a case was filed for determining
rt. the liability of the enterprises engaged in sale and manufacture of
hazardous products; and
2. the conditions in which they should be permitted to operate.
The Supreme Court, while deciding this case, referred to the leading case
of Rylands v. Fletcher? (Ryland case) but did not accept the principle laid
7. (1997) 2 SCC 267.
8. (1987) x SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
9. (1868) LR 3 HL 330: (1861-73) All ER Rep r. In the Ryland case, the defendant had
made water reservoir. However, beneath the site of the reservoir were the old shafts
of unused coal workings. They communicated with other coal workings including
the plaintiff’s colliery which was adjoining to it. There was no default on the part
of the defendants in selecting the site or construction of the reservoir but reasonable
care was not used by the persons employed with reference to the shafts, which failed
to bear the water pressure. The reservoir burst downwards. Consequently, the water
in the reservoir found its way into plaintiff’s colliery. The House of Lords upheld the
decision of court below granting damages against the defendant. The law laid down
in this case and its subsequent departure has been summarised in Halsbury Laws of
England, Vol. 45 (4th Edn.) para 1305 as follows:
A person who for his own purposes brings onto his land and collects and keeps
there anything likely to do mischief if it escapes must keep it in at his peril and,
 LAW [APP.
570 ENVIRONMENTAL

down therein. The Supreme Court established the rule of absolute liabil-
ity and held that if any damage is caused due to hazardous or danger-
ous activity, then the sufferer is liable to be compensated irrespective of
the fact that reasonable care was taken in carrying out the activity. The
liability is absolute; there are no exceptions as held in the Ryland case.
This principle has been enacted as part of two Acts, namely, the Public
Liability Insurance Act, 1991 and the National Environment Tribunal
Act, 1995.
Thus, the Supreme Court has established the following principles in
the aforesaid cases:
There should be sustainable development.
Precautionary principles should be adopted.
Polluter pays.
Public trust doctrine.
Save forests, trees, biodiversity.
am The rule of absolute liability.
pk
aes
lie
he

LEGISLATIVE RESPONSE
The legislature has also enacted many Acts. Apart from the Acts dealing
with protection of trees, forests, wildlife, biodiversity, the following Acts
have been enacted to preserve the environment and check pollution:
t. The Water (Prevention and Control of Pollution) Act, 1974 (the
1974 Act)
2. The Air (Prevention and Control of Pollution) Act, 1981 (the 1981
Act)
3. The Water (Prevention and Control of Pollution) Cess Act, 1977
(the 1977 Act)
4. The Environment (Protection) Act, 1986 (the 1986 Act)
5. The National Environment Appellate Authority Act, 1997 (the
1997 Act)
6. The Public Liability Insurance Rules, r991 (the r991 Act)
7. The National Environment Tribunal Act, r995 (the 1995 Act)

if he fails to do so, is prima facie liable for the damage which is the natural con-
sequence of its escape. Liability under the rule is strict, and it is no defence that
the thing escaped without the defendant’s wilful act, default or neglect, or even
he had no knowledge of its existence. The rule applies only to non-natural user of
the land. It does not apply
(7) to things naturally on the land;
(11) where the escape is due to an act of God, the act of a stranger or the
default of the plaintiff;
(111) where the thing which escapes is present by consent of the person injured;
(1v) in certain cases where there is statutory authority.
3] TOWARDS A GREENER TOMORROW 571

The aforesaid Acts are separate but in a way are connected with each
other. They along with the rules framed under them form the statutory
environment jurisprudence in our country.

The 1974, 1981 and 1977 Act

The 1974 and 1981 Act, as their name indicates, have been enacted to
prevent and control water and air pollution. The 1974 Act provides for
establishment of Central and State Pollution Boards. In other Acts, there
is reference to the Boards. They are the ones that are established under
the 1974 Act.
The 1974 and 1981 Acts also provide laying down of permissible water
and air pollutants. They provide punishment (Ss. 41-48 of Chap. VII of
the 1974 Act and Ss. 37-47 of Chap. VI of the 1981 Act) for violation
of the provisions of the Acts and permit the Boards (S. 33 of the 1974
Act and S. 22-A of the 1981 Act) to obtain restraining order from the
Magistrate in case the water and air is being polluted.
The 1977 Act merely provides cess for generating funds for the func-
tioning of the Boards under the 1974 Act.

The 1986 Act

The 1986 Act is more comprehensive and provide for protection and
improvement of environment. Section 3 of 1986 Act empowers the
Central Government to take such measures as are necessary for protect-
ing and improving the environment as well as preventing, controlling
and abating environment pollution. This includes power to restrict areas
in which industries, or operations, or process cannot be carried out or to
lay down the conditions under which they can be carried out.
The 1986 Act, in contradistinction to 1974 and 1981 Act, empow-
ers the Central Government to issue directions including for closure or
prohibition of any industry, or operation, or process. Under the 1974 or
1981 Act, the Board or the government has no power to issue restraint
order but have to move to the Magistrate for the same. Sections 15 to 17
of the 1986 Act provide punishment for violating the provisions of the
1986 Act and rules framed under it. The Central Government, in pur-
suance of the power conferred under the 1986 Act, has also framed the
following rules for specific industries:
1. The Manufacture, Use, Import, Export and Storage of Hazardous
Micro-Organism Genetically Engineered Organism or Cells Rules,
1989.
2. The Hazardous Waste (Management and Handling) Rules, 1989.
3. The Manufacture, Storage and Import of Hazardous Chemicals
Rules, 1989.
 [APP.
572 ENVIRONMENTAL LAW
Preparedness and
4. The Chemical Accidents (Emergency Planning,
Response) Rules, 1996.
Rules, 1998.
_ The Bio-Medical Waste (Management and Handling)
1999.
NN_ The Recycled Plastics Manufacture and Usage Rules,
7. The Municipal Solid Wastes (Management and Handling
Rules), 2000.
8. The Noise Pollution (Regulation and Control) Rules 2000."°
9. The Ozone Depleting Substances (Regulation and Control)
Rules, 2000.
10. The Batteries (Management and Handling) Rules, 20or.

The 1997 Act

The 1997 Act could have been merely an amendment to the 1986 Act.
Clause (v) of sub-section (2) of Section 3 of the 1986 Act empowers the
Central Government to impose restrictions in the areas in which any
industries, operations or class of industries, or operations or processes
shall not be carried out or shall be carried out subject to certain safe-
guards. The 1997 Act establishes a National Environment Appellate
Authority to deal with petitions, complaints, representations or appeals
against the grant of environmental clearance to projects. This was also
so recommended in the Oleum Gas Leakage case'' (para 22).

The 1991 and 1995 Acts

The growth of hazardous industries, processes and operations is accom-
panied by the growing risks from accidents. These accidents not only
involve the workmen employed in such undertakings, but also innocent
members of the public. The r991 Act was enacted to provide for man-
datory public liability insurance to the victims (other than workers) for
installations and handling of hazardous substances. The liability under
this Act is limited and is to be decided by the Collector on the principle
of absolute liability. However, availability of immediate relief does not
prevent the victims to go to courts for claiming larger compensations.
The 1995 Act is similar to the 1991 Act. Like the 1991 Act, it also pro-
vides the compensation to the person (other than the workman) or dam-
ages to any property from accident due to handling of any hazardous
substance. But unlike the 1991 Act, the compensation is not limited and
can be claimed not only for damage to any property but to environment
also. The 1995 Act also establishes tribunal and its Benches for adjudi-
cating the compensation and appeal lies to the Supreme Court.

10. See, Noise Pollution (5), re, (2005) 5 SCC 733: AIR 2005 SC 3136.
11. (1987) 1 SCC 395: 1987 SCC (L&S) 37: AIR 1987 SC 1086.
3] TOWARDS A GREENER TOMORROW 573

THE FORGOTTEN REMEDIES

There are many remedies that are available at the district level. They
should be properly utilised; they ensure greater participation of local
residents, who should in these matters be more concerned, and may
be more effective. These have also been explained in a recent deci-
sion of the Supreme Court in Kachrulal Bhagirath Agrawal v. State of
Maharashtra”.
1. Chapter X (B—“Public Nuisance”) Sections 133'%-143 and
(C—“Urgent Cases of Nuisance or Apprehended Danger”)
Section 144, Criminal Procedure Code (CrPC). Kindly see Municipal
Council, Ratlam v. Vardhichan'*. In this case, there were slums in
Ratlam. There were neither public lavatories nor drain, etc. This
was creating nuisance. The SDM, Ratlam, under Section 133 CrPC,
held that it was the duty of the Ratlam Municipality to remove the
nuisance and issued necessary directions. This was upset by the
District and Sessions Judge but was upheld by the High Court as
well as by the Supreme Court.
2. Criminal Prosecution under Chapter XIV (“Of Offences Affecting
the Public Health, Safety, Convenience, Decency, and Morals”)
Sections 268—294-A, Penal Code, 1860 (IPC).
3. Suits concerning public nuisances and other wrongful acts affect-
ing the public under Section 91 CPC.
4. Representative suits under Order 1 Rule 8 CPC.

“Tennessee Valley Authority v. Hiram G. Hill”

In other countries, public interest litigation is filed in the District Courts.
In the US it is often called class action. One of the most celebrated cases
in the US in the field of environment was Tennessee Valley Authority v.
Hiram G. Hill’.
A dam was being constructed over Little Tennessee River. Snail darter,
a three-inch tannish coloured fish, was found only in this river. It was
declared an endangered species under the US Endangered Species Act,
12. (2005) 9 SCC 36 (para. 10): 2005 SCC (Cri) 1191.
13. The continuance of S. 133 CrPC was challenged on the ground that it is impliedly
repealed by the 1974 Act. It was accepted by the MP High Court but the Supreme
Court reversed the decision and rejected the challenge in State of M.P. v. Kedia
Leather & Liquor Ltd., (2003) 7 SCC 389: 2003 SCC (Cri) 1642. The court observed:
The area of operation in the Code and the pollution laws in question are different
with wholly different aims and objects, and though they alleviate nuisance, that
is not of identical nature. They operate in their respective fields and there is no
impediment for their existence side by side.
14. (1980) 4 SCC 162: 1980 SCC (Cri) 933. |
15. 57 L Ed 2d 117: 437 US 153 (1978). For text see, <http://www.cortland.edu/polsci/
tva.html>.
574. ENVIRONMENTAL LAW [APP.

1973. Due to the construction of the dam, it was in danger of extinction.

A suit for injunction restraining the construction of the dam was filed.
The District Court denied the injunction. It was reversed by the Court
of Appeals and an injunction was granted. The matter was taken to the
US Supreme Court.
Traditionally Attorney General of the US appears in court only once
in his term—the Solicitor General normally argues cases in the court.
Griffin B. Bell, the then Attorney General, chose to appear in this case.
According to him the dam was almost complete and only for the three-
inch fish, the construction of the dam should not be stopped. The US
Supreme Court upheld the order of the Court of Appeals. The Congress
had to amend the law to get over the judgement."

TO BE A GOOD ENVIRONMENTALIST
Generally the laws by themselves are neither good nor bad: it is the peo-
ple executing them make it good or bad. The people executing them are
equally, if not more, important of the two. One cannot be good execu-
tor unless one is a good environmentalist: one has to practise what one
preaches. Here are some tips to be a good environmentalist:
1. Buy products that come in reusable packaging, like resalable con-
tainers, bottles.
Get into the habit of taking your own bag when you shop.
Don’t waste paper, use both sides of each sheet.
Collect all discarded paper for recycling.
i Avoid plastic packaging. Fruits, vegetables and meat do not need
al
ge
plastic trays to protect them.
6. Look for products that come in simple refillable containers and
refill them each time.
7. Store food in reusable airtight containers and not in cling wraps.
8. Save petrol pollute less.
9. Encourage car-pooling amongst offices, colleges and neighbours.
10. Switch off electricity when not in use.
11. Lobby-protect trees and forests.
12. Use recycled goods.
13. Use energy efficient electrical appliances—fluorescent bulbs
instead of ordinary bulbs. They cost more but last longer and use
less power.
14. Use environment friendly products.

16. After the talk, Mr John Pendergrass, Director, Judicial Programs,

Environmental
Law Institute (Washington DC, US) informed me that the snail
darters were trans-
planted to Hiawassee river and are thriving there.
3] TOWARDS A GREENER TOMORROW 575

ENVIRONMENT-ERIENDLY PRODUCTS: ECOLABELS

How does one find out energy efficient appliances or recycled goods?
“Ecolabelling” is the answer. It is a voluntary method of environmental
performance certification and labelling of environment-friendly prod-
ucts. There are many different voluntary (and mandatory) environmental
performance labels and declarations. The International Organisation for
Standardisation (ISO) has identified the common goal of these labels as:
[T]hrough communication of verifiable and accurate information, that is not
misleading, on environmental aspects of products and services, to encour-
age the demand for and supply of those products and services that cause
less stress on the environment, thereby stimulating the potential for mar-
ket-driven continuous environmental improvement.
The aforesaid voluntary labels have been identified by the ISO in three
broad categories.

1. Type I.—A voluntary, multiple-criteria based, third party program

that awards a licence that authorises the use of environmental labels
on products indicating overall environmental preferability of a product
within a particular product category based on life cycle considerations.
2. Type IJ.—Informative environmental self-declaration claims.
3. Type III.—Voluntary programs that provide quantified environ-
mental data of a product, under preset categories of parameters set by a
qualified third party and based on life cycle assessment, and verified by
that or another qualified third party

Ecomark scheme: India

The first national ecolabelling program was Germany’s Blue Angel
Ecoseal, designed in 1978. Since then, approximately 28 national ecolabel-
ling programs have been developed worldwide. The Indian Government
has also decided to institute a scheme of labelling of Environment
Friendly Products “Ecomark” in 1991 [Resolution No. GSR 85(E) dated
20 February 1991, MoEF and wildlife] (the Ecomark scheme).'” Clause 3
of the Ecomark scheme contemplates three stages for award of Ecomark:
r. A Steering Committee (set up in MoEF) to determine the product
categories; and to formulate strategies for promotion, implementa-
tion, future development and improvement of the Ecomark scheme.
>. A Technical Committee [set up in Central Pollution Board (estab-
lished under the 1974 Act)]'* to identify criteria, and inter se

17. For details see, <http://envfor.nic.in/cpcb/ecomark/ecomark.html>.

Network
18. Central Pollution Control Board is a member of the Global Ecolabelling
labelling
(GEN): a non-profit association of third-party, environmental performance
 ENVIRONMENTAL LAW [APP.>

576
for
priority between the criteria; and to identify specific product
the Ecomark scheme. :
a
3. The Bureau of Indian Standards to assess, certify and draw up
contract with the product manufactures for use of Ecomark label
on payment of fee.
An earthen pot has been chosen as the logo for the Ecomark scheme for
the reason that
rt. it uses a renewable resource like earth,
2. it does not produce hazardous waste, and
3. it consumes little energy in making.

Ecomark logo

Ecomark signifies that the product, which carries it, does the least damage
to the environment. Unfortunately there is lack of consumer awareness
and it is not popular. The government ought to take steps to popularise
it. Perhaps one of the first step could be to make Ecomark or similar
ecolabel mandatory for government, semi government, and government
sponsored purchases. A list of products having Ecomark is appended as
Appendix-1 of the scheme.

RECYCLING PROGRAMS IN INDIA

Due to our economic conditions, we already have a few recycling pro-
grams, namely,
1. the pheriwalas, the kabaries who purchase old newspapers, bot-
tles, tin canisters, iron.
2. the women who come to collect old clothes in exchange of utensils.
3. the boys who pick up plastic bags from garbage place.
The pheriwalas, the kabaries, and the women in fact pay in cash or kind
for one’s old and discarded stuff. The boys don’t pay but earn something

organisations founded in 1994 to improve, promote, and develop the “ecolabelling”

of products and services.
3] TOWARDS A GREENER TOMORROW 577

for themselves. These things are again used as it is or converted into a

thing of some other use like paper bags and dusters. In case, this can not
be done then they are recycled into other useful thing like glass, iron, tin,
paper, or plastic. These programmes should be strengthened and given
encouragement.

POPULATION CONTROL
We cannot solve our environmental problems unless we control and
reduce our population. We have to adopt and encourage following poli-
cies if we wish to contain it:
Increase level of education
Women empowerment
Improve basic health and medical services
shyp
Provide incentives for one child family and disincentives!’ for more
than one child family~°

GOLDEN RULE
Is there a golden rule for interpreting environment laws? Is there a com-
mon thread that runs through the fabric of environment jurisprudence?
Is there any central theme? Of course, there is and it is:
We have not inherited this planet from our parents
But have merely borrowed it from our children
Our children are our most important investments. They are our future.
We have to protect their tomorrow. The responsibility lies with us. If we
remember the golden rule, the common thread, and the central theme
19. Disincentives for more than two children have been upheld by the Supreme Court in
Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057.
20. The following has happened in direction of population control since delivering of this
talk:
1. The Allahabad High court has proposed “The Allahabad High Court
Computer Cadre Service Rules, 2005”. These rules not only bar the appoint-
ment of the persons if they have more than two children but also bar promo-
tion, or selection grade to the employees after more than two children are born
to them. Of course the rules takes into account the person having more than
two children before enforcement of the rules as well as step and adopted chil-
dren. Perhaps, the service jurisprudence will take a cue and similar provision
will be provided in every rule. For details, see, <http://www.allahabadhigh-
court.in/rules/computer_cadre_service_rules.pdf>.
2. District Cooperative Bank Ltd. v. State of U.P., 2005 All LJ 1892 has been
decided laying down the guidelines as to who may be appointed as administra-
tors after expiry of term of committee of management of a cooperative society.
Among the others it has been laid down that the persons having more than
two children may not be appointed. The text of the judgment is also available
at: <http://www.allahabadhighcourt.in/ejurix/servlet/webviewjudgement?ca-
setype=W RIC&caseno=38,022& year=2004&judgementdate=17/03/2005>.
578 ENVIRONMENTAL LAW [APP.

and are guided by it, then we will not only have a greener tomorrow but
a brighter one too.
Yatindra Singh,
Judge, Allahabad High Court
23, Judges’ Colony, Allahabad
Email: ysingh@allahabadhighcourt.in

APPENDIX-I OF ECOMARK SCHEME

TABLE 1 Position regarding grant of licences to use Ecomark on different products

Sl. Manufacturers IS No. and title CM/L No.

Century Pulps & Paper, Nainital 1848:1991 — Writing and printing papers 9297195
(third revision)
929238
Madhya Bharat Papers Ltd., Champa, 1848:1991 — Writing and printing papers
Chhattisgarh (third revision)
Ecoboard Industries Ltd., Jambhulwadi, Near 3087:1985 — Wood particle board
Peth Naka, Via Islampur, Taluka Walva, Distt. (medium density) for general purpose (first
Sangli—415407 revision)
12823:1990 — Wood
product— prelaminated particle board
Ecoboard Industries Ltd., Velapur, Taluk 3087:1985 — Wood particle board
Malshiras, Distt. Solapur—413113 (medium density) for general purpose (first
revision)
12823:1990 — Wood
product — prelaminated particle board
Mangalam Timber Products Ltd., Kusumi, 12406:2003 — Medium density fibre
Nowrangapur, Distt. Koraput—764059 board for general purpose
Orient Paper Mills (Prop: Orient Paper & 1848:1991 — Writing and printing papers
Industries Ltd.) P.O. Amlai Paper Mills, Distt. (third revision)
Shahdol
Tamil Nadu Newsprints & Papers Ltd.,
Kagithapuram, Karur—6391360
Satia Paper Mills Ltd., Vill. Rupana, Distt. 1848:1991 — Writing and printing papers 9432478
Muktsar (Punjab) (third revision)
-do-
9448695
Abhishek Inds. Ltd., (Paper & Chemical 1848:1991 — Writing and printing papers 9433177
Division) Mansa Road, Vill. Dhala Barnala, (third revision)
Distt. Sangrur (Punjab)
3] TOWARDS A GREENER TOMORROW 579

(contd.) :

SI. Manufacturers IS No. and title CM/L No.

no.
14. Shreyans Inds. Ltd., (Unit-Shreyans Papers) 1848:1991 — Writing and printing papers 9431375
Vill. Malikpur, Anmedgarh—148021 Distt. (third revision)
Sangrur (Punjab) |
15. Shreyans Inds. Ltd., (Unit-Shree Rishabh 1848:1991 — Writing and printing papers 9431476
Paper) Banah—144522, Distt. Nawanshahar _—(third revision)
1 ns Oi he eae eee cee en SES
16 -do- 6956:2001 — Cover paper 9444788
17. Tata International Ltd. Leather
Note:
(a) No. of manufacturers: 12
(6) No. of products: 7
() No. of product category: 3
 Subject Index
Abatement of pollution, 105
Absolute liability, 108, 109
Accounts and audit, 296, 297, 331
Acid rain, 26, 27, 175
Agenda 21, 461
Aircraft Act, 1934, 249
Air pollutants, 139, 140, 319
Air pollution, 28, 29, 309, 314,
321, 324
Air pollution control area, 317
Air (Prevention and Control of
Pollution) Act, 1981, 67, 309
Ambient air quality, 255
Ambient noise standards, 255
Amphibians, 377
Analyst, 186, 320, 327
Ancient monuments, 423
Anthropocentric approach, 11, 12, 13,
41, 43
Appellate authority, 79, 293, 302, 330
Appendix, 475
Appraisal Committee, 156
Articles 21, 19(1)(a) and noise
pollution, 266
Ashoka, 7
Asiatic Wild Buffalo, 408
Asiatic Wild Lion, 17
Assimilative capacity, 78
Atharvaveda, 4
Atomic Energy Act, 1962, 32, 340
Atomic Energy (Radiation Protection)
Rules, 1971, 435
Atomic Energy (Safe Disposal of
Radioactive Waste) Rules, 1987, 435
Audi alteram partem, 338
Authority, 165, 167, 180, 292, 302, 330
Autoclaving, 216
Automobiles, 112, 319
Bar of jurisdiction, 193, 302
Basel Convention, 212, 454
Batteries (Manufacture and Handling)
Rules, 2001, 207
Beas river, 179
Bengal Motor Vehicles
Rules, 1940, 252
Bern Convention on Conservation
of European Wildlife and Natural
Habitats, 1982, 15
Bhopal Gas Leakage
Disaster, 26, 46, 108
Bihar Control of the Use
and Play of Loudspeakers
Act, 1955, 250
Biodiversity, 421, 422
Biological diversity, 124, 373
Biological Diversity
Act, 2002, 18, 473
Biological productivity, 373
Biomedical waste, 126, 207, 215
Bio-Medical Waste (Management and
Handling) Rules, 1998, 126, 215
Bio Oxygen Demand, 175
Biosphere, 1, 11, 35, 38, 135
Biotic, 374
Birds, 6, 375
Bonn Convention on the Conservation
of Migratory Species of Wild
Animals, 1979, 457
Brundtland Commission, 35
582 ENVIRONMENTAL LAW

Brundtland Commission Constitution of India (contd.)

Report, 1987, 12 Art. 21, 58, 59, 60, 64, 65, 66, 67,
Budget, 297, 332 68, 69, 70, 71, 725 749 77> 79s 835
84, 85, 86, 88, 95, 96, 99, 265,
Burden of proof, 79
266, 376
Art. 25, 86, 263
Carbon credit, 470 Art. 26, 86, 263
Carbon dioxide, 28, 37 Art. 32, 62, 70, 735 83, 299
Cartagena Protocol on Art. 36, 90
Biosafety, 2000, 464 Art. 38, 86
Cattle Trespass Act, 1871, 375 Art. 39(e), 96
Central Board, functions of, 284, 314 Art. 41, 96
Central Empowered Committee, 77, 90 Art. 43, 96
Central Government, 158, 180, 212, Art. 47, 74, 90
281, 306, 388, 406, 407
Art. 48-A, 57, 59, 91, 94, 96, 98
Central Pollution Control Board, 230, Art. 51-A, 57, 86, 96, 304
284,311 ;
142, 188
Central Zoo Authority, 393
Art. 226, 72,84
Centre for Science and
Art. 252(1), 279
Environment, 24
Art. 253, 56
Certiorari, 73
Constitution of India and noise
Charaka Samhita, 6
pollution control, 262
Chemical treatment, 216
Control mechanism, 209
Chernobyl, 32, 206
Convention for Conservation of
Chief Wildlife Warden, 378, 379, 382, Antarctic Living Resources, 1980, 15
383, 387 Convention on Biological
Chipko movement, 8 Diversity, 1992, 15, 381, 462,
Civil courts, 302, 303
464, 473
Civil Procedure Code, 105 Convention on International Trade in
Si. 5A4, 62 Endangered Species of Wild Fauna
Clean Development Mechanism, 469 and Flora, 1973, 15, 381, 456, 464,
CNG. 72: 473, 474
Coastal Regulation Zone Rules Convention on the Conservation
Notification, 2011, 429 of Migratory Species of Wild
Commercial area, 255 Animals, 1979, 381
Common law, 109 Convention on Wetlands of
Companies Act, 1956, 332 International Importance 1971
Compensation, 49, 51, 75, 82, 108, 232 and 1982, 458
Compensatory afforestation, 354 Corporate social responsibility, 86
Compensatory payment, 89 meaning of, 87
Concurrent List, 57 Criminal Procedure Code, 1973, 110,
III, 114, 181, 248, 289
Consent order, 294, 321
Constitutional imperative, 91 Critically Endangered Species, 379
Constitutional obligation, 74, 96, 126
Constitution of India, 79, 91, 376 Damages, 82, 105, 108
Art. 14, 59, 61 Deemed consent, 291
Art. 19, 59, 62, 264, 265, 266 Deep burial, 216

Deforestation, 30
Dharmas, 2
Directions, 315, 328, 331
Directive Principles of
State Policy, 90
Disaster management, 120
Disinfection, 216
Disqualification, 283, 312
Dissolution, 339
Doctrine of non-violence, 2
Domestic animals, 239
Domestic sewage, 231
Duration, 283
Earth, 19
Earth Summit, liv, 78, 197, 460
Ecocentric approach, 14, 15, 16
Ecological balance, 93, 137, 303
Ecological Science Research
Group, 226
Ecology, 1, 80, 82, 127
reversing damages, 80
Ecomark Scheme, 344
Economic scientific benefits, 156
Ecosystem, 128, 135
Ecosystem, kinds of, 131
Effects of noise, 240
EIA Notification, 2006, 154
Elephants Preservation Act, 1879, 375
Bi se
Emission, 319, 320, 324, 326
Encyclopaedia Americana, 236
Encyclopaedia Britannica, 236
Endangered species, 377
Endangered Species Act, 1973, 19
Entry and inspection, 180
Environmental assessment, 43
Environmental Clearance
Regulation, 154
Environmental Courts, 51, 75, 226
Environmental degradation,
109, 123, 141, 196
Environmental education, 37
Environmental ethics, 2, 10
anthropocentric approach,
basis of, 14
ecocentric approach, 14
SUBJECT INDEX 583
. Environmental hazards, 125, 148
Environmentalist, 136, 268
Environmental jurisprudence, 75
Environmental pollutants, 161, 172
Environmental pollution, 21, 107,
£725. 310
Environmental science, 79
Environment courts, 197
Environment impact assessment, 155
Environment jurisprudence, 57
Environment (Protection)
Act, 1986, 67
noise and, 254
Environment Protection Fund, 295
Environment (Protection)
Rules, 1986, 388
Environment Relief Fund, 117, 119
Epistolary jurisdiction, 73
E-waste (Management and Handling)
Rules, 2011, 221
Exemplary fine/damages, 62, 82, 86,
295, 299
Exemplary punishment, 86
Factories Act, 1948, I15, 220
Fauna, 12
Fauna and flora, 374
Fine, 62, 295
Flora, 12
Flora and fauna, 2, 36, 123, 310
Fodder, 23
Food chain, -9
Food webs, 9
Forest Act, 1927, 158
Forest (Conservation)
Act, 1980, 18, 158
Forest officer, 383
Forum non conveniens, 48
Fundamental duty, 94, 97, 171
Fundamental right, 59, 66, 226, 265
26, 59,
Ganga, 27, 36, 103, 161, 175
Garbage, 26
12 Generator sets, 239
Genetically Engineered Organism
or Cells, 571
584. ENVIRONMENTAL
Gir forests, 17
Gir Lion, 377
Global warming, 37
Good faith, 337
Green belt, 171, 175
Green Bench, 296
Green courts, 179
Greenhouse effect, 29, 37
Gujarat, 17
Hazardous chemicals, 212
Hazardous Micro-Organisms
Rules, 1989, 207
Hazardous substance, 34, 50, 52, I15,
L1G, 117,143, ¥6s, £70
Hazardous waste, 31, 52, 79, 139, 143,
163, 176, 208, ‘216, 232
Hazardous Wastes (Management and
Handling) Rules, 1989, 435
Hazardous Wastes (Management,
Handling and Transboundary
Movement) Rules, 2008, 208
Hindu way of life, 6
Horns, 252
Hot-mix plants, 228
Human dignity, 65, 70
Inadequacies of science, 79
Inanimate, 231
Incineration, 216
Industrial area, 255
Industrial effluents, 24
Inherent powers, 187
Insecticides, 116
Integrated Development
of Wildlife Habitat
Scheme, 2009, 393
Intergenerational equity, 98
International Conference on Human
Environment, 11
International drinking water supply
and sanitation decade, 273
International environmental law,
sources of, 443
International Union for Conservation
Resolution, 1963, 473
Intra sound, 238
LAW
Isa Upanishad, 15
Ivory, 396, 397
Jammu & Kashmir Forest
Act, 1930, 356
Johannesburg Declaration, 2002, 12
Judicial activism, 225
Jurisprudence, 98
Kanpur City Municipal
Corporation, 226
Karnataka Forest Act, 1963, 356
Kerala Forest Act, 1961, 356
Kherjarilli, 8
Kudankulam, 88
Kudankulam Nuclear Power
Plant, 435
Kuno Wildlife Sanctuary, 18
Kyoto Protocol, 1997, 468
Laboratory, 183, 185, 288, 320, 327
Land filling, 224
Landfills, disposal in, 216
Land pollutants, 139
Land pollution, 30
Lawn-mowers, 239
Law of tort and noise, 244
Legislative measures, 242, 243
Liability, 277, 339
Living environment, 65
Local autoclaving, 216
Loudspeakers, 239, 243, 254
Madhya Pradesh Control of Music
and Noises Act, 1951, 250
“Magna Carta” on Human
Environment, 39, 55, 124, 272
Mammals, 31
Mandamus, 73, 84, 252
Mandatory duty, 172, 182, 278
Man-made pollution, 28
Manusnrriti, 5, 348
Marine pollution, 451
Maximum permissible limits, 220
Measurement of noise, 238

Measure of compensation, 168
Methyl Isocyanate, 27, 108
Micro-organism, 137, 176
Micro-waving, 216
Minamata disease, 30, 206
Mines Act, 1952, 46
Mining, 30
Minor radiological detriments, 156
Montreal Protocol, 1987, 456
Mother earth, 10
Motor Vehicles Act, 1988, 196
noise control, 196
Multinational corporation, 48
Municipal solid waste, 25, 26, 224
Municipal Solid Wastes
(Management and Handling)
Rules, 2000, 230
Municipal Solid Wastes
Rules, 1999, 26, 225
Mutilation, 216
Nagoya Protocol, 2010, 465
Nairobi Convention, 1985, 272, 460
Namibia, 18
National Action Plan on Climate
Change , 2008, 473
National Ambient Air Quality
Standards, 161, 173
National Auto Fuel Policy, 342
National Biodiversity Action
Plan, 2008, 473
National Environment Appellate
Authority Act, 1997, 167
National Environment
Policy, 2006, 38, 473
National Forest Policy, 1988, 369, 473
National Green Tribunal
Act, 2010, 199
National parks, 376, 379, 390
National Policy on Biofuels, 344
National Tiger Conservation
Authority, 394
National Wildlife Action
Plan, 2002-2016, 407, 473
Natural causes, 21
Natural environment, 1
Natural justice, 480, 481
SUBJECT INDEX 585
Natural pollution, 28
Natural resources, 24, 26, 37
Negligence, 27, 90, 98
NGO, 38
Nilay Choudhary Committee, 51
No-fault liability, 5x
Nome. 31, 35, 235; 237
Noise and sound, 237
Noise code, 85
Noise control under Criminal
Procedure Code, 1973, 248
Noise control under
other statutes, 249
Noise control under Penal
Code, 1860, 246
Noise control under Railway
Act, 1890, 249
Noise, effects of, 240
Noise limits for automobiles, 258
Noise, measurement of, 238
Noise pollution, 28, 31
Noise pollution control and
Constitution of India, 262
Noise pollution, protection from, 242
Noise Pollution (Regulation and
Control) Rules, 2000, 255
Noise pollution, sources of, 239
Noise standards for firecrackers, 258
Non-compliance, 298, 333
Non-delegable duty, 108, 109
Non obstante clause, 304
Non-violence, 7
Notification, 305
Noxious, 107, 110
Nuclear energy, 32
Nuclear plants, 32
Nuclear power plant, 88
Nuclear waste, 229
Nuisance, 102, 104, 105, 245,
276, 280
Odour, 328
Offences by companies, 190, 300,
335, 405
Office congregation, 239
Off-site emergency plans, 163, 213
Oikos, 127
586 ENVIRONMENTAL LAW

Oleum gas, 27, 115, 177, 323
On-site emergency plan, 163
Orissa Fireworks and
Loudspeaker (Regulation)
Act, 1958, 251
Our Common Future, 40, 206, 453
Outlets, 290
Oxygen, 28
Ozone depletion, 36, 451
Panchayats (Extension to the Scheduled
Areas) Act, 1996, 158
Parens patriae, 47
Parliament, 55, 56, 307, 410
Pathological laboratory, 216
Pavement, 23, 69
Penal Code, 1860, 109, 120, 246, 248,
27% ga 375
Pesticides, 30
Physiological effects, 241
Plastic Waste (Management and
Handling) Rules, 2011, 216
Polar river, 166
Polluter pays principle, 42, 76, 80,
166, 228
Pollution, 142, 225, 295
Pollution compensation, 83
Pollution fine, ror, 189, 295, 299
Pollution of river Ganga, 161
Polythene bags, 62
Population, 21, 22
Population control, 22
Population growth, 21
Postulates anthropocentric bias, 41
Potable water, 71, 274
Poverty, 22
Precautionary principle, 42, 76, 78,
166, 228
Prevention of Cruelty to Animals
Act, 1960, 409
Prevention of Cruelty to Animals
(Slaughter House) Rules, 2001, 416
Principle of absolute liability, 81
Principle of inter-generational
equity, 87
Principles of sustainable
development, 43
Private parties, no transfer to, 95
Prohibited area, 287
Project Tiger, 374
Protected area, 384, 386
Protection from noise pollution, 242
Protocol to Antarctic Treaty on
Environmental Protection, 1998, 15
Psychological effects, 240
Public drains, 63
Public interest litigation, 73, 75, 103,
104, 188, 266, 267, 295
Public Liability Insurance
Act, 1991, I17, 169, 222, 223
Public nuisance, 109, I10, 112,
174, 246
Public parks, 425
Public servants, 193, 282
Public trust doctrine, 92, 94, 273
limits on, 95
Punishment, 187, 254, 333, 334
Purity of water, 272, 279
Quality of air, 149, 168, 313
Quality of environment, 145, 146, 148
Quality of life, 64, 70, 149
Quantum of compensation, 27
Oui facit per alium facit per se, 300
Quorum, 307, 341
Radiation, 28, 38
Radiation and radioactive
pollution, 28, 32
Radiation Protection Rules, 1971, 32
Radioactive, 340
Rajasthan Noises Control
Act, 1963, 251
Ratlam Municipality, 74
Recycled Plastic Rule, 1999, 164
Red List of International Union for
Conservation, 2008, 473
Religion, right to, and noise
pollution, 263
Religious teachings, 8
Remedial measures, 180, 324
Representative samples, 14
Reptiles, 377
 SUBJECT INDEX 587

Residential area, 255 4 State Board, functions of, 285, 316

Residuary clause, 299, 334 State governments, 162, 379, 385
reversing damaged ecology, 80 State List, 56
Reward, 406 State Pollution Control Board, 163,
Right to access to clean drinking 282, 290
water, 274 State responsibility, 58
Right to constitutional remedies, 72 Stockholm, 11
Right to equality, 60 Stockholm Declaration, 1972, 12, 40,
Right to life, 64, 65, 66, 69, 71 58, 59, 272, 448, 452, 473
Right to livelihood, 65, 69, 113 Streams, 31, 281, 289, 299
Right to live of endangered species, 58 Strict liability, 102, 107, 222
obligation to save, 58 Subterranean water, 281
Right to religion and noise Supreme Court of India, 12, 74, 211,
pollution, 263 418, 456
Right to shelter, 68 power of, 74
Rigveda, 5, 274 Suspended particulate matter
Rio Declaration, 1992, 12 (SPM), 140, 310
Rio Declaration, 2012, 12 Sustainable development, 22, 26, 36,
Rio de Janeiro, 78 41, 66, 77, 273
River Yamuna, 25
Rural Litigation and Entitlement
Taj Trapezium, 27, 75, 175, 179, 315
Kendra, 45, 182
Tanneries, 175, 177
Temperature, 277, 291
Safety data sheet, 213 Tiger Project, 374
Safety report, 212 Tiwari Committee, 37, 38
Samples, 183, 184, 185, 288, 326 Tort, 101
Sanctuaries, 375, 379, 386, 390, Toxic chemical, 178
392, 401 Toxic effluents, 177
Scheduled Tribes and Other Traditional Toxic gas, 108
Forest Dwellers (Recognition of
Toxic mass tort, 227
Forest Rights) Act, 2006, 34, 93, 94,
Toxic waste/substances, 30, 38, 115,
158, 406
2.20, 2304231, 232
Science and technology, 35
Treatment plants, 176
Scientific uncertainty, 79
Trespass, 102, 105
Seventh Schedule, 57
Tribal, 391
Sewage effluent, 290
Trophies, 396, 398
Shrimp aquaculture farms, 174
Typing machines, 239
Silence zone/area, 255, 257
Silent Valley, 44, 374
Sirens, 239 Ultra sound, 238
Slum dwellers, 23 UN Conference on Human
Slums, 23, 31 Environment, 1972, 39, 125
Smoking, 71 UN Convention on the Law of the
Social cost, 108 Sea, 1982, 455
Social justice, 61, 74 Uncured trophy, 396
Special damage, 104 UN Framework Convention on
Standards of emission, 145, 316, 339 Climate Change, 1992, 462
588 ENVIRONMENTAL LAW

Union Carbide Corporation, 27 Wildlife (Protection) Act, 1972, 9, 17,

Union List, 56 3755 382, 419
UN World Commission Wild Water Buffalo, 381
on Development and Words and phrases
Environment, 1987, 36 “corporate social
Upanishads, 2, 7 responsibility”, 86
Urbanisation, 23, 196 Workmen, 51, 96
World Charter for
Nature, 1982, 78, 459
Varadarajan Committee, 161
World Commission on Environment
Varikchay devta, 5
and Development, 1987, 23, 41
Vedas, 2,8
World Environment Day, 272
Vermin, 396
World Summit on Sustainable
Vicarious liability, 189, 190, 191 Development, 2002, 467
Vienna Convention on Protection of
Ozone Layer, 1985, 456
X-ray, 32

Wastes disposal, 24
Water pollutants, 139 Yajurveda, 7, 274
Yamuna, river, 25
Water pollution, 28, 33, 276
Water (Prevention and Control of
Pollution) Act, 1974, 67, 279 Zoning laws, 25
Wildlife Advisory Board, 383 ZOOS, 394

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 NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY LIBRARY
NAGARABHAVI, BANGALORE - 560 072.
Tren This book must be retumed by the date stamped below

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 Environmental Law by Professor Satish C. Shastri is greatly admired
and read by students, lawyers, NGOs and others concerned about the
preservation of our environment. The new fifth edition has been
thoroughly revised and updated to incorporate all statutory law and
case law developments.

The author has discussed the paradigm shift in the approach of

the courts, i.e. from anthropocentric approach to eco-centric approach,
to achieve the goal of environmental justice. The focus of the courts has
shifted from humans to the protection and preservation of ecology or
the present species of flora and fauna, as it is necessary for the
existence of mankind. The evolving concept of “corporate social
responsibility” in relation to environmental justice has also been
provided due place in this work.

The new edition comes with a new layout where important cases
are marked with a Case Pilot appearing in the page margin. A
companion web resource EBC Explorer™ (www.ebcexplorer.com),
provides access io the most important cases and statutes, along with
updates, video lectures, discussion forum and a host of free learning
resources.

The book will prove to be immensely useful to students of LL.B.

and LL.M., researchers, administrators, academicians, judges,
advocates and NGOs. The book will definitely be a prized collection for
any library.

Extract from the Foreword

“Dr. Satish Shastri by writing this book has done a great service to society. The
book shows his immense interest, in-depth study and deep love for the
subject and the concerned law”. —Justice V.S. Dave :

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